PrawfsBlawg

JOTWELL: Bookman on Dickinson on state courts and democracy

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Gerald S. Dickinson, Judicial Laboratories, ___ U. Pa. J. Const. L. ___ (forthcoming 2025), exploring state courts' unique powers and unique roles in preserving and promoting democracy.

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

JOTWELL: Craig on Shatzman on clerkship whisper network

The new (guest) Courts Law essay comes from Jade Craig (Nova-Southeastern) reviewing Aliza Shatzman, The Clerkship Whisper Network: What It Is, Why It's Broken, and How to Fix It, 123 Colum. L. Rev. F. 110 (2023).

JOTWELL: Effron on Bookman on default judgments

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming 2025), on the rules for default judgments and how they harm defendants.

JOTWELL: Carroll on Gluck, Burch, and Zimmerman on bankruptcy and mass tort

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Abbe R. Gluck, Elizabeth Chamblee Burch, & Adam S. Zimmerman, Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation, 133 Yale L.J.F. 525 (2024), questioning the "turn to bankruptcy" to resolve mass tort cases.

303 Creative, Exclusive Private Enforcement, and Blue-State Revenge

(Finally; it only took 7 hours) available on SSRN. If you or someone you love operates a law review, it is available.

Here is the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

JOTWELL: Bartholomew on Rapallo on attorney-client privilege in Congress

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 1oo Wash U. L. Rev. 455 (2022).

JOTWELL: Thomas on Frampton on jury integration

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, ___ N.Y.U. L. Rev. ___ (forthcoming 2024).

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

JOTWELL: Mullenix on Lammon on finality

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. (forthcoming 2024) on parties manufacturing finality through voluntary dismissals and other moves.

JOTWELL: Smith on Ahdout on the Court's role in separation of powers

The new Courts law essay comes from Fred O. Smith, Jr. (Emory), reviewing Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023), considering how the Court's role as a participant in separation-of-powers disputes affects the doctrine.

JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including Aditya Bamzai,Saikrishna Bangalore Prakash, to whom their essay responds) suggest.

JOTWELL: Campos on Marcus on non-US discovery

The new Courts Law essay comes from Sergio Campos (BC), reviewing Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Processo Civile E Costituzione (Augusto Chizzini et al., eds., Giuffrè Francis Lefebvre 2023), which argues that discovery outside the United States looks a lot like U.S. discovery, despite assumptions that the U.S. is unique (and crazy).

JOTWELL: Kalajdzic on Erichson & Leib on class settlements as contracts

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts, 102 N.C. L. Rev. ___ (forthcoming 2023), which argues against understanding class action settlements as contracts.

JOTWELL: Wasserman on Johnson on question selection

I have the new Courts Law essay, reviewing Benjamin Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022), an excellent history of how SCOTUS seized the power to grant cert and review discrete questions rather than entire cases.

JOTWELL: Malveaux on Williams on sex-plus

The news Courts Law essay comes from Suzette Malveaux (Colorado) reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming) on how courts deal with intersectional discrimination claims.

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

JOTWELL: Bookman on Weinstein-Tull on traffic courts

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Justin Weinstein-Tull, Traffic Courts, 112 Cal. L. Rev. ___ (forthcoming 2023), the latest article (and Courts Law review essay) to consider life in lower-level state and local courts (and outside the federal courts on which many scholars and scholarship focus).

JOTWELL: Levy on George, et al. on SCOTUS Clerks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tracey E. George, Albert Yoon, & Mitu Gulati, Some Are More Equal Than Others: U.S. Supreme Court Clerkships, an empirical study of who clerks for SCOTUS, where they come from, and where they go.

JOTWELL: Steinman on constitutional remedies

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Brandon L. Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739 (2022) and Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737 (2021); the articles explore and criticize different limitations on constitutional remedies.

JOTWELL: Coleman on Brito, Sabbeth, Steinberg & Sudeall on racial capitalism

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022), which explores the racial inequality embedded in state court procedure.

JOTWELL: Pfander on Elliott on SCOTUS original jurisdiction

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker) reviewing Heather Elliott, Original Discrimination: How the Supreme Court Disadvantages Plaintiff States, 108 Iowa L. Rev. 175 (2022), a takedown of SCOTUS's exercise of discretion in original jurisdiction and some solutions.

JOTWELL: Smith on Sohoni and procedural originalism

The new Courts Law essay comes from Fred Smith (Emory) reviewing Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023), which explores how originalism has not (yet) come for constitutional doctrines in civ pro, such as personal and subject matter jurisdiction.

JOTWELL: Thomas on Adams, et al. on open justice

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Zoe Adams, Abi Adams-Prassl & Jeremias Adams-Prassl, Online Tribunal Judgments and the Limits of Open Justice, 42 Legal Stud. 42 (2022).

JOTWELL: Kalajdzic on Tang on copyright class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Xiyin Tang, The Class Action as Licensing and Reform Device, 122 Colum. L. Rev. 1627 (2022).

JOTWELL: Shatzman on Fogel, Hoopes, & Liu on diversity in clerkship hiring

The new Courts Law essay comes from guest Aliza Shatzman, reviewing Jeremy Fogel, Mary Hoopes, and Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals.

JOTWELL: Tidmarsh on Hershkoff & Norris and democracy and jurisdiction

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Helen Hershkoff & Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, Mich. L. Rev. (forthcoming 2023), exploring how corporate power influences jurisdictional rules in ways that enhance corporate power and limit democracy.

JOTWELL: Michalski on FJC on pro se electronic filing

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing the Federal Judicial Center's study of electronic filing by pro se litigants.

JOTWELL: Campos on Francus on the Texas Two-Step

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. Online 38 (2022), another discussion of the use of bankruptcy in mass tort.

JOTWELL: Effron on Simon on bankruptcy as aggregate litigation

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Lindsey D. Simon, Bankrtupcy Grifters, 131 Yale L.J. 1154 (2022), which considers bankruptcy as a tool of aggregate litigation and the problem of solvent debtors running to bankruptcy to avoid mass-tort litigation.

More on SB8 and its imitators: NYT v. Sullivan as Historical Analogue

Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan--a campaign of private civil litigation designed to chill conduct through costly litigation and liability--offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.

Here is the abstract:

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.

This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.

JOTWELL: Bartholomew on Ormerod on qui tam

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Peter Ormerod, Privacy Qui Tam, ___ Notre Dame L. Rev. (forthcoming 2023), proposing qui tam actions to enforce privacy rights.

JOTWELL: Mullenix on Dodge, Gardner, & Whytock on Forum Non Conveniens

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing William S. Dodge, Maggie Gardner, & Christopher A. Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. (forthcoming 2023).

JOTWELL: Vladeck on Codrington on Purcell

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021), exploring the use of Purcell to avoid challenges to COVID-related voting restrictions.

JOTWELL: Carroll on Greene & Renberg on judges without J.D.s

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022), examining the phenomenon of low-level state judges who do not have law degrees.

JOTWELL: Wasserman on Clopton on catch-and-kill jurisdiction

I have the new Courts Law essay, reviewing Zachary D. Clopton, Catch and Kill Jurisidiction (Mich. L. Rev., forthcoming), which describes a category of cases in which federal courts pull cases out of state court through expansive federal jurisdiction, then dismiss on uniquely federal non-merits bases. For further reading, see the response forthcoming in Mich. L. Rev. Online.

JOTWELL: Coleman on Reda on data and inequality

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Danya Sochair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 Colo. L. Rev. ___ (forthcoming 2023), on how data has been misused in a partisan rulemaking process to create and further procedural inequality.

JOTWELL: Campos on Gilles on compelled arbitration

The new Courts Law essay comes from Sergio Campos (Miami), discussing the legislative testimony of Myriam Gilles (Cardozo) on bills designed to limited compelled arbitration.

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part II

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

Civil Procedure in the Chief Justice's Year-End Report on the Federal Judiciary

Published in Stetson Law Review, part of a SEALS symposium on the Roberts Court's renewed interest in civil procedure.

JOTWELL: Bartholomew on Borchers on tag jurisdiction

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.

JOTWELL: Endo and Beerdsen on discovery as practice

The new Courts Law essay comes from Seth Katsuya Endo (Florida), reviewing Edith Beerdsen, Discovery Culture, 57 Georgia L. Rev. (forthcoming 2022). The article and the review are great. I used this idea of discovery as norms and practices in teaching that section last week.

JOTWELL: Erbsen on Bookman & Shanahan on lawyerless courts

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022), which considers how procedure operates in the many courts dominated by pro se litigants. This is the latest in a run of articles and JOTWELL essays considering procedure on the ground outside of the federal courts we focus on in the classroom and in much scholarship.

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I

The first of Rocky's and my (hopefully) three SB8 articles has been published in American University Law Review. This focuses on how providers cannot and can challenge SB8 through offensive litigation, including why WWH was correct and other offensive options the Court did not consider. AULR's editors were impressive in turning the piece around in less than three months after the Court's decision We are editing the second piece, forthcoming in SMU Law Review and focused on how defensive litigation may play out. The third piece, on New York Times as historical analogue, sits on a law review editorial desk near you.

JOTWELL: Smith on Citron & Solove on privacy harms

The new Courts Law essay comes from Fred Smith, Jr. (Emory) reviewing Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. ___ (forthcoming 2022), which explores how to better recognize and remedy privacy violations.

New York Times v. Sullivan as Historical Analogue

Charles W. "Rocky" Rhodes and I have posted to SSRN the third piece in our series on SB8--Solving the Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times as Historical Analogue. The piece compares Alabama's defamation regime and the coordinated campaign of private civil litigation to silence the northern media and stop coverage of the civil rights moves, none of which triggered offensive litigation.

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat, while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $ 10,000 per prohibited abortion. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

This Article—the third in a series unpacking S.B.8’s procedural puzzles—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free-speech case. Like S.B. 8, New York Times arose out of a campaign to deter locally unpopular-but-constitutionally protected activity through threat of hundreds of lawsuits and devastating liability; southern governments used state defamation law and private civil litigation to silence The Times and other media outlets from reporting on Jim Crow and the Civil Rights Movement. As with S.B. 8, state defamation law was enforced through private civil damages litigation. As with S.B.8, defendants faced severe monetary exposure through the cost of litigation and potential liability. But defendants in New York Times could not go to federal court ahead of any private lawsuit and seek to functionally enjoin the state’s trial courts. Rather, the paper litigated defensively, with successful review to the Supreme Court of the United States; providers can follow the same process to challenge the substantive validity of the Texas heartbeat ban.

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.