Hertz, Appellate Review, and Sneaky Tricks

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5 Responses

  1. TJ says:

    I have no insight into the empirical question, but why is the trick “sneaky”? I would have thought that it is the straightforward consequence of the retroactivity of Supreme Court decisions. Moreover, both attorneys and appeals courts are duty-bound to raise the issue of a defect in SMJ (supposedly, even the winning attorney is supposed to disclose this, though none do), so it is hardly fair to deride attorneys for doing so.

  2. Glenn Cohen says:

    Thanks TJ. I should have been clearer in my terminology. As my Civ Pro students well know, “sneaky” is a high compliment from me when it comes to litigating….something like the adjective “resourceful” that precedes Odysseus’ name in the Iliad. I am a firm believer that as long as it does not cross-over into the unethical or end up hurting their clients’ interest (for example, by the judge losing trust in the advocate), advocates should aspire to “sneakiness.”

  3. Howard Wasserman says:

    An interesting related question is whether a losing party might use Hertz to *reopen* an already-final judgment under FRCP 60(b)(4) on the ground that the judgment is void because the court lacked SMJ. This seems weaker than the basic question Glenn asks (absence of jurisdiction alone probably does not render the judgment void), but it reflects an even “sneakier” move.

  4. Glenn Cohen says:

    Thanks Howard. I had wondered about the 60(b)(4) route too, and also about whether there would be attempts at relitigation in state court with claim preclusion being fended off with an argument that the original federal court lacked Subject Matter Jurisdiction? I think there might also be interesting questions relating to removal, in particular as to whether an intervening Supreme Court decision is enough to make this a case that “has become removable,” 28 U.S.C. 1446(b), although the 1 year from commencement limit in the clause may dispose of many of these cases…

  5. Howard Wasserman says:

    The last point is interesting. Much would depend on whether the one-year limit is “jurisdictional” or not, which affects whether it can be subject to some equitable exception.

    By the way, at the end of the day, none of this will work because of the commitment to finality, which is no different for jurisdictional issues as for substantive merits issues.