Wednesday, January 6, 2021

Mullenix on Russell on Frivolous Defenses

Today on the Courts Law section of JOTWELL is Linda Mullenix’s essay, A Non-Frivolous Challenge to Frivolous Defenses. Linda reviews Thomas Russell’s recent article, Frivolous Defenses.

 

 

 

January 6, 2021 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, December 28, 2020

University of Chicago Law Review Special Edition Dedicated to Judge Diane Wood

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.

 

 

 

December 28, 2020 in Recent Scholarship | Permalink | Comments (0)

Monday, December 21, 2020

Dangerous Secrets: Confronting Confidentiality in Our Public Courts

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.

 

 

 

December 21, 2020 in Conferences/Symposia, Discovery, Recent Scholarship, State Courts | Permalink | Comments (0)

Friday, December 11, 2020

Carroll on Martinez on Investigating Judicial Misconduct

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).

 

 

 

 

December 11, 2020 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, December 4, 2020

2021 Pound Institute Civil Justice Scholarship Award

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.

Congratulations!

 

 

 

 

December 4, 2020 in Recent Scholarship | Permalink | Comments (0)

Thursday, December 3, 2020

Freer on Defense Preclusion

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.

 

 

 

 

 

 

 

 

 

 

December 3, 2020 in Recent Scholarship | Permalink | Comments (0)

Thursday, November 12, 2020

Levy on Gardner and McAlister on Non-Binding Authority

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).

 

 

 

November 12, 2020 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, October 28, 2020

Smith on Davis on Standing for State and Local Governments

Today on the Courts Law section of JOTWELL is Fred Smith’s essay, Assessing the Rise of the Governmental Plaintiff. Fred reviews Seth Davis’s recent article, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).

 

 

 

October 28, 2020 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, October 26, 2020

SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts

The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?

I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.

Continue reading

October 26, 2020 in Adam Steinman, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Recent Scholarship, Supreme Court Cases, Web/Tech | Permalink | Comments (0)

Friday, October 9, 2020

Effron on Rose on Class Action Notice & Administration

Now on the Courts Law section of JOTWELL is Robin Effron’s essay, #Getyour$$now!: A New Plan for Class Action Notice and Administration. Robin reviews Amanda Rose’s article, Classaction.gov, U. Chi. L. Rev. (forthcoming 2020).

 

 

October 9, 2020 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, September 30, 2020

Case-Linked Jurisdiction and the Ford Cases (Guest Post by Howard M. Erichson, John C. P. Goldberg & Benjamin C. Zipursky)

Howie Erichson, John Goldberg, and Ben Zipursky present the following guest post on the much-anticipated Ford cases that will be argued next week:

* * *

On October 7, an eight-member Supreme Court will hop on the phone and hear oral argument in a pair of cases carried over from last term: Ford Motor Company v. Montana Eighth Judicial District Court and Ford Motor Company v. Bandemer. Because these cases focus on personal jurisdiction, Justice Ginsburg will be especially missed. A former civil procedure professor, Justice Ginsburg was the most important voice on the Court in this area of the law. Here, as elsewhere, she occupied positions of principle that cut across political divides.

The Court will need wisdom for these cases because they present a surprisingly difficult legal problem whose resolution could have a significant impact on future civil litigation. Suits were brought on behalf of a Montana resident and a Minnesota resident involved in car accidents in their respective home states. The Montana resident was killed and the Minnesotan suffered a severe brain injury. In both cases, the injury was allegedly caused by a product malfunction in the Ford vehicle in which they rode: a Ford Explorer with rollover problems in the Montana case and a Ford Crown Victoria with defective airbags in Minnesota. Ford has argued that, because the Explorer was first sold by a Ford dealer in Washington State, rather than Montana, the Montana courts have no personal jurisdiction over it. Similarly, it has argued that because the Crown Victoria was first sold by a Ford dealer in North Dakota, rather than Minnesota, the Minnesota courts have no personal jurisdiction over it. The high courts of Montana and Minnesota rejected Ford’s arguments, but Ford successfully petitioned the U.S. Supreme Court to hear both cases. Due to COVID-19, the oral argument originally scheduled in May of 2020 was pushed over until the Term that is about to begin.

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September 30, 2020 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, September 29, 2020

Steinman on Appellate Courts and Civil Juries

I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the 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, which has led to confusion regarding 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.

As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.

Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.  

 

 

 

September 29, 2020 in Conferences/Symposia, Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 10, 2020

Mangat on Weinstein-Tull on Local Courts

Today on the Courts Law section of JOTWELL is Leonardo Mangat’s essay, Unshrouding Our Day-to-Day Courts. Leonardo reviews Justin Weinstein-Tull’s article, The Structures of Local Courts, which is forthcoming in the Virginia Law Review.

 

 

September 10, 2020 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, September 3, 2020

Freer on Diversity Jurisdiction

Rich Freer has posted on SSRN a draft of his article, The Political Reality of Diversity Jurisdiction, which is forthcoming in the Southern California Law Review. Here’s the abstract:

Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts.

But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine.

These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.

September 3, 2020 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, August 26, 2020

Higginbotham, Rosenthal & Gensler on the 12-person civil jury

Judge Patrick Higginbotham, Judge Lee Rosenthal, and Professor Steve Gensler have published Better by the Dozen: Bringing Back the Twelve-Person Civil Jury in the latest issue of Judicature. Their article begins:

A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers. To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.

History. Social science. Civics. Common sense. That’s a powerful quartet. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.

 

 

August 26, 2020 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 11, 2020

Steinman on Jacobi & Sag on Laughter at the Supreme Court

Now on the Courts Law section of JOTWELL is my essay, No Laughing Matter. I review a recent article by Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019).

 

August 11, 2020 in Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Thursday, August 6, 2020

Pound Civil Justice Institute's 2020 State Appellate Judges Forum: Confidentiality & Public Courts

The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.

 

 

August 6, 2020 in Conferences/Symposia, Recent Scholarship, State Courts | Permalink | Comments (0)

Tuesday, August 4, 2020

Cabraser & Steinman on Class Action Objectors and the 2018 Amendments to Rule 23

Elizabeth Cabraser and I have posted on SSRN our recent article, What Is a Fair Price for Objector Blackmail? Class Actions, Objectors, and the 2018 Amendments to Rule 23, 24 Lewis & Clark L. Rev. 549 (2020). Here’s the abstract:

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes — along with other on-the-ground developments — are important steps toward improving the class action settlement process.

Thanks once again to the Pound Civil Justice Institute, Lewis & Clark Law School, and Bob Klonoff for organizing a great symposium last fall.

 

 

 

August 4, 2020 in Class Actions, Conferences/Symposia, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, July 30, 2020

Klonoff on Class Action Objectors, MDLs

Bob Klonoff has posted drafts of two articles on SSRN: Class Action Objectors: The Good, the Bad, and the Ugly, which is forthcoming in the Fordham Law Review; and The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, which is forthcoming in the University of Missouri-Kansas City Law Review.

Here are the abstracts:

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July 30, 2020 in Class Actions, MDLs, Recent Scholarship | Permalink | Comments (0)

Tuesday, July 28, 2020

Singer on Reichman, Sagy & Balaban on Using Technology to Regulate Judges

Today on the Courts Law section of JOTWELL is Jordan Singer’s essay, The Machinery of Justice. Jordan reviews Amnon Reichman, Yair Sagy & Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

 

 

July 28, 2020 in International/Comparative Law, Recent Scholarship, Web/Tech, Weblogs | Permalink | Comments (0)