This annual roundtable—organized and moderated by Charles “Rocky” Rhodes (Missouri) and Tom Metzloff (Duke)—explores developments in civil procedure. As it has done every five years, the group focused on the round-number anniversary of the Roberts Court—this year, the twentieth.
Zoe Niesel (South Carolina) presented Hertz and the “Hard Cases:” Examining Fifteen Years of the Nerve Center Test (forthcoming KAN. L. REV.). She examined the “hard cases” on corporate citizenship, identifying two classes: Complexities over corporate structure and corporations with executives working remotely, located in many places, or located away from general operations. Her key takeaways: Courts look at the sued entity and have developed a hierarchy of factors for complicated officer structures. Questions probed the Court’s failure to provide a “simple” answer and the effects of remote work and AI on the analysis.
Three presenters the explored personal jurisdiction.
Mike Vitello and Dan Croxall (McGeorge) presented a work-in-progress, Politics, State Courts, and Personal Jurisdiction. They tested the political leanings of state-court judges interpreting Ford Motor Co. v. Montana Eighth Judicial District, expecting Red State judges to be less likely to find jurisdiction over out-of-state defendants. The results “kind of” bore that out, with 65 % of decisions matching the hypothesis. But the details showed more nuance beyond politics. California (and western states) have taken a less-expansive view while Texas (and other southwestern states) have been more expansive. Small states take a narrower approach. The size of the defendant company matters in all courts. Questions suggested that state courts may be more worried about protecting in-state resident plaintiffs than negatively affecting out-of-state corporate defendants.
Jill Fisch (Penn) led a discussion of personal jurisdiction under the Fifth Amendment after Fuld v. PLO. She argued that the Court did not offer more than the conclusion that the Fifth Amendment is different because federalism plays no role and that due process was satisfied in this case. It left many open questions, including the centrality of consent, the role of reasonableness, and the role of sovereign power. The group discussed whether the case is worth teaching (or just mentioning in class) and how; Fisch viewed it as an answer to the power questions in Nicastro.
Sue Provenzano (Georgia State) presented Citizens United Solves Consent to General Jurisdiction. She argues that general personal jurisdiction by consent requires registration plus some degree of political engagement and influence in the state, where the out-of-state corporation acts like a resident. Relying on Citizens United and the right of corporations to engage in the political process, she argues that corporations subject themselves to general personal jurisdiction by making campaign contributions or lobbying beyond an annual monetary threshold. Questions probed potential First Amendment concerns with the idea.
The group then moved away from personal jurisdiction.
Tom Metzloff (Duke) argued for renewed scholarly attention to Rule 11 and sanctions in federal court. Events of the past decade—2020 election litigation; the DOJ memo urging government attorneys to seek sanctions from plaintiffs more often; President Trump’s threats against law firms (effectively seeking to sanction firms now for past allegedly frivolous litigation); and filing using hallucinated AI citations (which Tom argues does not fit Rule 11).
Howard Wasserman (FIU) discussed Berk v. Choy, in which the Court will decide whether federal courts must apply state medical malpractice Affidavit-of-Merit statutes. The current “Roberts Court” looks different than the “Roberts Court” that decided Shady Grove in 2010—five new Justices, a renewed focus on federalism, and no authors remaining from past Erie cases—and may take a different approach to these issues. Tom (Justice Barrett) and Howard (Justice Kavanaugh) bet $ 5 on who will write the opinion for the Court.
Stefanie Lindquist (Wash. U.) presented The Vanishing Appeal, exploring the shrinking of courts of appeals dockets to early-1990s levels and whether the likelihood of appeal links to the ideology of the court of appeals. She found lower appeal rates where the court of appeals has a wider ideological range, suggesting concern for random judge selection. Questions explored whether parties have a harder time preserving error in non-trial resolutions in district courts; whether the same trend appears on the criminal side (it does); the role of costs in the trend; and how the shrinking docket has changed how courts of appeals decide cases (it has not—levels of argument and published opinions have not changed).