PrawfsBlawg

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.

JOTWELL: Pfander on Bray & Miller on equity

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022), including a shout-out to the SB8 litigation on everyone's mind.

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

JOTWELL: Mullenix on Norris on neoliberal procedure

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Luke Norris, Neoliberal Civil Procedure, 12 UC Irvine L. Rev. (forthcoming 2022).

JOTWELL: Vladeck on Siegel on habeas

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Jonathan R. Siegel, Habeas, History, and Hermeneutics, Ariz. L. Rev. (forthcoming 2022), which traces the history of habeas in the shadow of Edwards v. Vannoy.

JOTWELL: Steinman on Bayefsky on respect and Article III

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021). This is a great article (and great review), although I unsurprisingly do not believe the model, however valid, gets us to universal injunctions.

JOTWELL: Carroll on Sabbeth & Steinberg on gender and the right to counsel

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Kathryn A. Sabbeth & Jessica Steinberg, The Gender of Gideon (forthcoming UCLA L. Rev), which considers how the Court has rejected a civil right to counsel in cases involving women litigants and gendered contexts.

A Court with No Names: Anonymity and Celebrity on the "Kardashian Court"

My essay, A Court with No Names: Anonymity and Celebrity on the "Kardashian Court", has been published in Iowa Law Review Online. This is a response to Suzanna Sherry's Our Kardashian Court (And How to Fix It), which argues that the solution to judicial celebrity is to require the Court to issue one per curiam opinion with no separate opinions or vote counts. I consider some things lost or gained under Sherry's plan, why it may be too late for it, and how to expand the plan or combine it with other court-reform proposals.

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

JOTWELL: Re on Varsava on judicial opinion-writing

The new Courts Law essay comes from guest Richard Re (Virginia), reviewing Nina Varsava, Professional Responsibility and Judicial Opinions (Hous. L. Rev., forthcoming), on judges have (too much?) fun in their opinions.

Congress and universal injunctions

My latest, published at Cardozo Law Review De Novo. The essay analyzes the role of Congress in ending the controversy over universal/non-particularized injunctions. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

JOTWELL: Malveaux on Spaulding on "actual" procedure

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021) on how much of civil procedure occurs outside of federal court and the need for legal education to acknowledge and reflect that reality.

JOTWELL: Erbsen on Gluck & Burch on MDL

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. ___ (forthcoming 2021).

JOTWELL: Coleman on Gadson on stolen plausibility

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L.J. ___ (forthcoming 2021), on courts preventing plaintiffs from relying on facts from other cases and other investigations as a way to satisfy Twiqbal.

JOTWELL: Thomas on Coleman on the Rules Committees

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Commitees, 68 UCLA L. Rev. Disc. 270 (2020), which explores the race and gender composition of the rules committees and the problems lack of diversity creates.

JOTWELL: Kalajdzic on Salib on AI class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Peter Salib, Artificially Intelligent Class Actions, ___ Tex. L. Rev. ___ (forthcoming), which explores how AI might be used in class-action certification.

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

New Draft Papers

I have two new articles on SSRN and in circulation to law reviews.

Zombie Laws explores something I discussed here--the statute that remains on the books following a judicial declaration of invalidity, which Fifth Circuit Judge Gregg Costa called a "zombie law." The article discusses how Congress and state legislatures can narrow, expand, or eliminate them. Larry Solum was good enough to flag this one.

Congress and Universal Injunctions discusses five legislative proposals for eliminating universal injunctions and why they do or do not work tor resolve the problem.

JOTWELL: Bookman on King on global civil procedure

The new Courts Law essay comes from Pamela Bookman (Fordham), reviiewing Alyssa King, Global Civil Procedure (Harv. J. Int'l L., forthcoming).

JOTWELL: Bartholomew on Lammon on class-action appeals

The new Courts Law essay comes from new contributor Christine Bartholomew (Buffalo), reviewing Bryan Lammon, An Empirical Study of Class-Action Appeals.

Painting Constitutional Law

I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

JOTWELL: Mullenix on Russell on frivolous defenses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Thomas D. Russell, Frivolous Defenses, which focuses on tort defendants' non-compliance with the rules governing responsive pleadings. I spend time in Civ Pro on this subject, especially the way that defendants refuse to respond to allegations (common response: "Neither admit nor deny and strict proof demanded thereof," which is nonsense) and the refusal of any judge other than Milton Shadur^Z"L of the ND Ill. to hold attorneys to account for these practices.

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

JOTWELL: Levy on Garder and McAlister on nonbinding authority

The new Courts Law essay comes from Marin Levy (Duke), reviewing Maggie Gardner, Dangerous Citations (forthcoming N.Y.U. L. Rev.) and Merritt E. McAlister, Missing Decisions (forthcoming U. Pa. L. Rev.), each addressing different problems related to the use of nonbinding authority.

JOTWELL: Smith on Davis on public standing

The new Courts Law essay comes from Fred Smith (Emory), reviewing Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019), analyzing state and local governments as plaintiffs.

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Reynolds on cameras in the classroom

An article of note by Glenn Reynolds (Tennessee) on using (inexpensive) real cameras to create a better-looking remote classroom.

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

JOTWELL: Singer on Reichman, Sagy, & Balaban on machines and judges

The new Courts Law essay comes from guest reviewer Jordan Singer (New England Law-Boston), reviewing Amnon Reichman, Yair Sagy, & Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

JOTWELL: Endo on Engstrom & Gelbach on legal tech

The new Courts Law essay comes from new contributor Seth Katsuya Endo (Florida) reviewing Daniel Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. ___ (forthcoming 2020), exploring the interplay between new legal technology and the adjudicative process.

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

JOTWELL: Erbsen on Nash & Collins on certificates of division

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. ___ (forthcoming 2021), about the certificate of division that Justices used when riding circuit to get cases before SCOTUS.

JOTWELL: Coleman on Wood on the real world of sexual harassment litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Diane P. Wood, Sexual Harassment Litigation With a Dose of Reality, 2019 U. Chi. Legal F. 395 (2019), which demonstrates the real-world problems facing sexual-harassment litigants.

JOTWELL: Mulligan on Rubenstein on federal common law

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing David. S. Rubenstein, Supremacy, Inc. (UCLA L. Rev., forthcoming), exploring the interaction among federal-contractor immunity, preemption, and federal common law.

JOTWELL: Effron on Zambrano on discovery as regulation

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Diego Zambrano, Discovery as Regulation (Mich. L. Rev., forthcoming 2020), which reframes discovery in private enforcement litigation not as a tool of litigation but as a form of public regulation.

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.