The Green Bag has picked, as an example of “exemplary legal writing,” Professor Stephen Sachs’s amicus brief in Atlantic Marine v. U.S. District Court (previously discussed here). This reminds me that I didn’t have a chance to write a post when the Supreme Court decided Atlantic Marine a few weeks ago. The decision was unanimous […]
Archive | Civil Procedure
Class Action Litigation
People who follow class action litigation are doubtless familiar with the “smelly washer” cases (see also here and here). The Sixth Circuit and the Seventh Circuit (per Judge Posner) allowed consumer class actions based on alleged washing machine design defects to go forward, the Supreme Court reversed and remanded the cases for reconsideration in light […]
Professor Stephen Sachs and Atlantic Marine v. U.S. District Court
On Wednesday, the Supreme Court heard oral argument in Atlantic Marine v. U.S. District Court, a case about the proper procedure for enforcing a forum selection clause. As I’ve mentioned on this blog before, Professor Stephen Sachs (who is also a friend) filed an amicus brief arguing that both parties were wrong and that a […]
28 U.S.C. 2403(a) and State Court Litigation
One of my favorite statutes, 28 U.S.C. 2403(a), says that when a federal court is hearing a case in which the constitutionality of a federal statute is drawn into question, the court is supposed to notify the Attorney General if the United States is not already a party: In any action, suit or proceeding in […]
Sachs on Personal Jurisdiction and Authority
Speaking of Steve Sachs and civil procedure, I was recently reminded of this passage, from a recent article by Steve, on the question of whether the Constitution’s limits on personal jurisdiction focus on convenience and fairness or on something more like sovereignty (an issue that may well come up again in next term’s personal jurisdiction […]
An Excellent Example of a Scholarly Amicus Brief
Eugene had some posts a while back about good amicus briefs, and now that I’m here I wanted to mention an unusually good academic amicus brief recently filed at the Supreme Court — that of Professor Stephen E. Sachs as amicus curiae in Atlantic Marine v. U.S. District Court (although the real respondent is J-Crew […]
“Revisiting the ‘Preponderance’ Debate”
Joe Cohn of the Foundation for Individual Rights in Education — a group which I very much respect — passed along this response to my post on whether universities should apply the “preponderance of the evidence” standard in deciding whether to expel or otherwise discipline students accused of sexual assault: Professor Volokh recently authored a […]
Quantum of Proof in University Sexual Assault Investigations
When a university is deciding whether to expel, suspend, or otherwise discipline a student for an alleged sexual assault, how much proof should the university proceeding require? Should the student’s guilt be shown by “clear and convincing evidence”? By a “preponderance of the evidence,” which is what the Department of Education’s Office for Civil Rights […]
May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?
That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions […]
Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery
The decision by the Pennsylvania Court of Common Pleas is Arcq v. Fields (Dec. 8), and it distinguishes Largent v. Reed (blogged about recently here) on the ground that the party seeking discovery lacked a sufficient good-faith basis for requesting access to the private portion of the other side’s social networking accounts. In Largent, and […]
39-Year-Old Man with Alleged PTSD Seeks Court Order Against Harassment by 86-Year-Old Woman Neighbor, but Asks that He Not Have to Appear in Court
That’s the scenario in a 6-1 decision of the Maine Supreme Judicial Court (which comes out in plaintiff’s favor, on the question of whether his case can proceed) in Blackhouse v. Doe (decided last Thursday), which deals with two legal issues: (1) When may a complaint be dismissed at the outset on the grounds that […]
Second Circuit reverses Judge Weinstein’s order against firearms stores. Concurrence harshly rebukes him.
City of New York v. Mickalis Pawn Shop was recently decided by a unanimous 3-judge panel of 2d Circuit Judges Sack and Wesley, plus Judge Eaton (Court of International Trade) sitting by designation. The case began several years ago when New York City Michael Bloomberg brought a public nuisance lawsuit against several firearms stores located […]