Monday, October 26, 2020
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.
Friday, September 25, 2020
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Stay (Faraway, So Close!) in Touch with Civil Procedure, which discusses the Civil Procedure Unavailability Workshop series (covered earlier here).
Tuesday, July 28, 2020
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).
Wednesday, July 1, 2020
Today on the Courts Law section of JOTWELL is Seth Endo’s essay, Charting the Interactions of Legal Tech and Civil Procedure. Seth reviews David Engstrom and Jonah Gelbach’s article, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. (forthcoming 2020).
Friday, June 5, 2020
Unfortunately, the Sixth Annual Civil Procedure Workshop (originally scheduled to be held at Northwestern Law School this September) has been postponed. Fortunately, the Civil Procedure Workshop steering committee has organized a session on civil procedure pedagogy and distance learning that will take place over Zoom on Wednesday, June 17 at 1:00-3:30pm EDT.
Dave Marcus has shared the following details:
Everyone will assemble on Zoom for an initial session led by Tara Grove (Alabama), Howie Erichson (Fordham), Beth Thornburg (SMU), and Liz Porter (UW). Tara, Howie, Beth, and Liz have all put a good deal of thought into how to make various aspects of distance learning work for law teaching, so I’m really grateful that they’ll share their wisdom. We’ll then divide into breakout sessions for smaller group conversations. The proceedings will conclude with another plenary session.
I’m hopeful that many of you can join us, as I know that I have a lot to learn before the fall semester begins. I also would very much like to see as many of you as possible, if only in a small square on Zoom.
If you’re interested, email Dave at firstname.lastname@example.org.
Tuesday, May 19, 2020
Below is an updated schedule for the online civil procedure workshop series covered earlier. You can register here (be sure to register for Civ Pro, not Evidence -- unless you also want to join the Evidence one, which is great too).
May 5, 2020: Alexi Lahav -- Bristol-Myers Squibb: Going Forward
May 19, 2020: Rick Marcus -- E-Discovery
June 23, 2020: Robin Effron -- New Perspectives on Joinder
July 7, 2020: Rich Freer -- Civil Procedure and the Bar Exam
July 14, 2020: Valerie Hans -- Civil Juries
July 21, 2020: Kevin Clermont -- Preponderance of the Evidence Standard
August 11, 2020: Brian Soucek -- Pleading Standards for Affirmative Defenses
September 1, 2020: Howie Erichson -- Distinguishing Between Facts And Conclusions Under Iqbal
October 6, 2020: Portia Pedro -- Remedies and Civil Procedure
November 10, 2020: Zach Clopton & Colleen Shanahan -- State Civil Procedure
February 2, 2021: Pamela Bookman & David Noll -- Ad Hoc Procedure
March 2, 2021: Beth Burch -- Multi-District Litigation
April 6, 2021: David Engstrom & Jonah Gelbach -- Legal Tech
Thursday, March 5, 2020
Last week, the Twenty-First Century Courts Act (H.R. 6017) was introduced in the House of Representatives. The bill would require: a Code of Conduct for Supreme Court Justices (§ 2); written recusal explanations, including for Supreme Court Justices (§ 3); online publication of financial disclosure reports (§ 4); same-day audio release of Supreme Court oral arguments (and live audio within two years), and live audio of oral arguments in the federal courts of appeals (§ 5); improvements to electronic case management systems (§ 6); and free access to electronic documents via PACER (§ 7).
Here is the full text:
You can follow the bill’s progress here.
Monday, September 23, 2019
Thursday, August 22, 2019
Amy Schmitz has published Expanding Access to Remedies through E-Court Initiatives, 67 Buff. L. Rev. 89 (2019). Here’s the abstract:
Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public courts have continued to insist on traditional face-to-face procedures. Nonetheless, e-courts and public ODR pilots are developing throughout the world in particular contexts such as small claims and property tax disputes, and are demonstrating how technology can be used to further efficiency and expand access to the courts. Accordingly, this Article explores these e-court initiatives with a critical eye for ensuring fairness, due process, and transparency, as well as efficiency, in public dispute resolution.
Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.
Monday, March 6, 2017
In my opinion, the video is suitable for law students and also the general public. I think there is a great need for clear, brief videos on various aspects of the U.S. government. There appears to be a dearth of knowledge on that score. For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.
Friday, October 14, 2016
Eugene Volokh and Paul Levy have an interesting post over at the Washington Post/Volokh Conspiracy. It begins:
There are about 25 court cases throughout the country that have a suspicious profile:
- All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)
- All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).
- Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.
Now, you might ask, what’s the point of suing a fake defendant (to the extent that some of these defendants are indeed fake)? How can anyone get any real money from a fake defendant? How can anyone order a fake defendant to obey a real injunction?
Check it out to find the answers.
Monday, October 3, 2016
Last week, U.S. Magistrate Judge Laurel Beeler of the Northern District of California invoked Rule 4(f)(3) to order that a plaintiff be allowed to use Twitter to serve process on a Kuwaiti national. The case is St. Francis Assisi v. Kuwait Financial House, and the opinion begins:
The plaintiff, St. Francis Assisi (a non-profit corporation), sued the defendants, Kuwait Finance House, Kuveyt-Turk Participation Bank Inc., and Hajjaj al-Ajmi (an individual) for damages and equitable relief arising from the defendants’ financing of the terrorist organization known as the Islamic State of Iraq and Syria (ISIS), which resulted in the targeted murder of Assyrian Christians in Iraq and Syria. (See Compl., ECF No. 1.)
St. Francis has not been successful in serving process on al-Ajmi. (See ECF No. 10.) Al-Ajmi is a Kuwaiti national and efforts to locate him have been unsuccessful. (Id.) St. Francis now asks to serve al-Ajmi by alternative means under Federal Rule of Civil Procedure 4(f)(3) via the social-media platform, Twitter. (Id.) The court grants St. Francis’s request because service via Twitter is reasonably calculated to give notice and is not prohibited by international agreement.
Eric Goldman has coverage here.
Monday, August 29, 2016
Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.
Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).
Wednesday, June 15, 2016
Friday, March 18, 2016
Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.
Thursday, June 4, 2015
Know anyone studying for the bar exam who needs help in Civil Procedure? My esteemed colleague, Professor Ira Nathenson (a member of the Executive Committee of the AALS Section of Civil Procedure, as well as its webmaster and co-manager of the CivProMentor listserv), has recently posted some fine resources on his website.
Professor Nathenson’s site includes a Resources page for Civil Procedure on the Multistate Bar Examination (MBE). The resources include numerous Civil Procedure YouTube videos as well as problem sets, explanations, flowcharts, and handouts. (If you thought that the Erie doctrine could not be reduced to a flow chart, check out his Coggle flowchart here.)
The substantive materials are grouped by topic (such as subject-matter jurisdiction, personal jurisdiction, joinder, and much more), allowing you to zero in on Civ Pro issues of interest. Many of the YouTube videos are annotated, pointing you to related resources. The site also includes an overview of which Civ Pro topics topics are more likely to be tested.
As most people in the US legal world know by now, federal Civil Procedure was added to the Multistate Bar Examination only recently. It was first tested on the MBE during the February 2015 administration. Professor Nathenson's excellent materials should help to ease the panic for some new graduates preparing for the bar.
Wednesday, May 7, 2014
The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"
The digest of the opinion states:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
The deadline for public comments is 5 p.m., June 24, 2014.
Saturday, February 15, 2014
Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:
NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.
Monday, December 9, 2013
The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."
Apparently without irony, Third Branch notes, "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."