First Circuit

District of Maine Judicial Conference

I had the opportunity to attend the District of Maine Judicial Conference earlier this week, and it did not disappoint.  It was the first one held in four years given the pandemic, and it was great to hear from practitioners and judges in person.  My partner Nolan Reichl, along with Valerie Wicks, moderated a great panel on Rule 26(f) issues.  Of particular note for this blog, however, attendees also had the opportunity to hear from the Chief Judge of the First Circuit, Judge Barron.

Judge Barron provided an enlightening “State of the Circuit” update at the Conference.  Judge Barron noted the transitions on the First Circuit bench, with the appointments in the last year of Judge Montecalvo for the open seat from Rhode Island and Judge Gelpí from Puerto Rico.  More changes are yet to come, with a vacancy for Judge Howard’s seat from New Hampshire, and a pending nominee (Julie Rikelman) for Judge Lynch’s seat from Massachusetts.  This is certainly a remarkable

The First Circuit Reframes Preemption

Yesterday the First Circuit handed down a notable decision in Maine Forest Products Council v. Cormier, a case in which my firm represented the plaintiffs-appellees.  In MFPC, plaintiffs challenged a state law barring non-resident workers from hauling logs within Maine under the federal H-2A visa program.   The First Circuit concluded that plaintiffs demonstrated a substantial likelihood of succeeding on their claim that the state law is preempted by federal immigration law.  The preemption analysis in MFPC presents a notable clarification of the First Circuit’s approach to obstacle preemption.

The state law, Public Law 280, prohibits the employment of non-resident workers from transporting forest products within Maine.  By contrast, federal law permits non-resident workers to obtain admission to the United States to transport forest products under the H-2A program as long as employers demonstrate that there are not sufficient U.S. workers to perform the labor and that the employment of the nonresident would not adversely affect wages

The Dormant Commerce Clause and Discrimination in Illegal Interstate Markets

Last week the First Circuit reached an interesting conclusion: the U.S. Constitution prohibits states from adopting protectionist legislation affecting illegal interstate markets.  The case, Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, involved a state law requiring officers and directors of medical marijuana dispensaries operating in Maine to be Maine residents.  The plaintiff sued, seeking to sell their business to a Delaware corporation despite the Maine law.  The plaintiff invoked the U.S. Constitution’s so-called Dormant Commerce Clause, which prohibits states from placing substantial burdens on interstate commerce via protectionist legislation.

The fundamental issue in the case was whether the Dormant Commerce Clause applies in the context of illegal markets.  The defendants conceded that protectionist legislation, such as the residency requirement in Maine’s medical marijuana law, is virtually always unconstitutional.  They argued, however, that the residency requirement was not invalid because federal law makes the interstate marijuana market illegal.  If the interstate market itself is illegal, there is at

Can You Enforce an Online Contract In Maine? It Depends.

The Law Court recently weighed in on a matter of critical importance – the enforceability of online consumer contracts.  Confronting the issue in a case involving ride-sharing giant Uber’s efforts to enforce an arbitration provision, the Law Court held in Sarchi v. Uber Technologies that online contracts are enforceable only if the consumer (1) has reasonable notice of the online contract terms, and (2) has manifested consent to those terms.   

Sarchi is one of many cases that have tested the bounds of what companies must do to secure consumers’ consent to the terms of a contract through software applications – but it is the first decision of its kind from the Law Court.  The Uber rider app at issue in Sarchi allowed consumers to register for an account without having to view the contract terms or expressly acknowledge agreement to those terms.  The Law Court held that, given these circumstances, the consumer could not be bound

Revisiting Appellate Trends from 2021

Around this time last year, I took a look at statistics showing that the filing of new civil appeals had declined in federal courts and in Maine.  As I observed then, the 2020 statistics had not yet fully captured the impact of the pandemic on appeals and civil appeal statistics would bear monitoring.  I decided to check back a year later, and it appears that the trend of declining appeals accelerated in 2021.

As Chief Justice Roberts’ 2021 year-end report discloses, new filings in federal courts of appeals fell from 48,190 in 2020 to 44,546, a decline of 9%; the decrease in civil appeals matched this decline.  This trend can also be seen in the First Circuit statistics; there, total appeals for the 12-month period ending June 30, 2021 fell over 15% as compared to the prior 12-month period ending June 30, 2020.  Even more starkly, total civil appeals for the 12-month period ending June 30, 2021 fell to

A New Experiment In Oral Arguments

Practice area:

For Supreme Court watchers and appellate practitioners, last week brought an interesting development – the Court is changing how it conducts oral argument.  Arguments will now feature both unstructured questioning by all justices and then uninterrupted questioning by individual justices. It will be fascinating to watch how this new approach affects oral arguments in the Supreme Court, and whether it will trickle down to other federal and state appellate courts.

As highlighted at SCOTUSblog (here) and the Appellate Advocacy Blog (here and here), the new format first gives counsel two minutes of uninterrupted time, and then allows for free-for-all questioning by the justices for the remainder of counsel’s 30 minutes of argument.  That is familiar practice; in a new twist, however, each justice in order of seniority then has the opportunity – after the 30 minutes of time has expired – to question counsel individually.  No strict time limit applies to this new segment

All Cleaned Up

Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable.  So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets?  One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case.  But there is another option – and it was just endorsed by Justice Thomas last month.

A little bit of background:  As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).”  The proposal has its supporters, including no less than Bryan Garner, but also its critics.  The approach would improve readability, but might become a crutch that encourages appellate lawyers

Appellate Trends During the COVID-19 Pandemic

Chief Justice Roberts recently issued his year-end report on the federal judiciary, appropriately focusing on the effects of the COVID-19 pandemic.  The Chief Justice noted that 2020 ended with the judiciary in much the same situation as when the American court system began – in the midst of a public health crisis.  In 1790, it was the influenza.  In 2020, of course, it was the coronavirus.  Throughout the history of our judicial system, whether by horseback or by Zoom, the work of appellate courts has proceeded despite health challenges.

What caught my attention in the report was a statistic showing that new filings in regional courts of appeal fell by less than one percent in 2020, from 48,486 to 48,190.  New civil appeals decreased five percent, reflecting a decrease in new civil filings in district courts.  That made me delve deeper into judicial statistics, to look at what is going on in the First Circuit and in Maine.

The same downward trend

Immediate Appeals of Temporary Restraining Orders? Not So Fast.

Interlocutory appeals, including those relating to injunctive relief, often present traps for the unwary.  In state court in Maine, parties typically cannot appeal an order granting or denying a motion for preliminary injunction.  The Law Court has so held in numerous cases, including Sanborn v. Sanborn.  In federal court, by contrast, it is possible to appeal an order granting or denying a motion for preliminary injunction under 28 U.S.C. § 1292.  But is it possible to appeal an order denying a motion for a temporary restraining order in federal court?  This was the issue recently tackled by the First Circuit in Calvary Chapel v. Mills.  The answer, in short, is “usually, no.”

Calvary Chapel is but one of the many cases that have spun out of the COVID-19 pandemic.  In it, a church challenged an early executive order issued by Governor Mills limiting “non-essential” activities and gatherings.  The plaintiff

COVID-19 and Appellate Practice

Holed up here in my home office like many of you, I thought it would be a helpful time to take stock of the current state of affairs in the courts of appeal during this pandemic. As with most of life, COVID-19 has disrupted normal operations, leaving all of us in a state of uncertainty. But here is where things currently stand:

In the Supreme Court, the March oral argument session has been cancelled – a highly unusual step, but one that happened previously with the Spanish flu in 1918. The Supreme Court has also issued a standing order extending some deadlines, including the deadline for filing a petition for cert.

The First Circuit, meanwhile, has posted a notice stating that the April 6-9 sitting has been cancelled. No blanket order has yet issued extending deadlines, however. That may change. [UPDATE: The First Circuit has extended deadlines for many filings due