Tag Archives: sixth circuit

Visiting Judges in the Sixth Circuit

On more than one occasion, we have discussed the Sixth Circuits use of visiting judges. Specifically, we have noted the Sixth Circuit’s heavy reliance on visiting judges. While the Sixth Circuit’s use has decreased, the percentage of cases heard by visiting judges continues to exceed almost all other circuit courts. In the review of case … Continue Reading

Sixth Circuit Clarifies Standard for Interlocutory Appeal Under 1292(b)

In Little v. Louisville Gas & Electric Co., decided with a companion case, the Sixth Circuit offered some pointers on discretionary interlocutory review under 28 U.S.C. 1292(b). The district court had declined to dismiss state claims as preempted but independently dismissed most of plaintiffs’ federal claims.  In certifying under 1292(b), the court certified “that portion” … Continue Reading

Sixth Circuit Sides with Third Circuit on Preemption Issue

In an opinion issued yesterday, the Sixth Circuit concluded that the Clean Air Act does not preempt common law claims brought against an emitter that are based on the law of the state in which the emitter operates. Merrick, et al. v. Diageo Americas Supply. The court’s holding is consistent with the Third Circuit’s holding … Continue Reading

Divided Sixth Circuit Addresses “No Fly” List

The Sixth Circuit issued an opinion this morning taking a stance on an issue of first impression involving subject matter jurisdiction. On appeal from the Eastern District of Michigan, Mokdad v. Lynch, et al. involved a challenge by Saeb Mokdad, a naturalized United States citizen, to his placement on the No Fly List, a list … Continue Reading

The Sixth Circuit Has A New Chief

Judge R. Guy Cole, Jr. became the Chief Judge of the Sixth Circuit on August 15.  Prior to his nomination to the Sixth Circuit, Chief Judge Cole had a diverse range of experience, including both public service and private practice: a litigator at the United States Department of Justice, a law firm partner, and a … Continue Reading

Donald Verrilli Headlines the Sixth Circuit Practice Institute

Solicitor General Donald Verrilli discussed the history and purpose of the Solicitor General’s office in the keynote address at Tuesday’s Sixth Circuit Practice Institute.  He explained that the commonly-held idea that he is representing the United States as an abstraction is misguided.  With every important issue, the Solicitor General reaches out to agencies and executive … Continue Reading

More on the Sixth Circuit and Circuit Splits

We have recently reported on the Sixth Circuit’s recent record in circuit splits.  Considering circuit splits raises an interesting question: If the circuit courts have not acknowledged a circuit split, how much attention should the Supreme Court pay to district courts’ perceptions when deciding whether to grant cert?  The district court is presumably neutral on … Continue Reading

The Sixth Circuit Rejects Settlement That Benefits Plaintiffs’ Attorneys At The Expense Of The Class

The Sixth Circuit’s decision in In re: Dry Max Pampers Litigation (No. 11-4156) creates a new standard for class action settlements:  they must pass the smell test.  Judge Kethledge’s decision finds that the class received “nearly worthless injunctive relief” while the named plaintiffs received $1,000 per child and the plaintiffs’ attorneys received $2.73 million.  The … Continue Reading

Sixth Circuit Rejects $500 Million Claim By FDIC

In FDIC v. AmTrustFinancial Corporation, the Sixth Circuit considered the results of the very first trial in the nation under Bankruptcy Code Section 365(o).  Section 365(o) is an infrequently litigated provision of the Bankruptcy Code that requires a party seeking Chapter 11 bankruptcy protection to fulfill “any commitment . . . to maintain the capital … Continue Reading

Predicting Outcomes Based On Questioning at Oral Argument

In connection with the Supreme Court’s health care decision, many commentators doubted whether judges’ questioning at oral argument can be used to predict outcomes.  Yet recent research has shown that the emotional content of a judge’s questions does predict voting patterns at the Supreme Court.  We applied this research to the Sixth Circuit by looking … Continue Reading

Sixth Circuit Finds No Reasonable Expectation of Privacy in Data Emanating from Cell Phone

In an interesting criminal case, United States v. Skinner (09-6497), the Sixth Circuit rejected a Fourth Amendment challenge by a convicted drug runner based on the government’s tracking of location data from his cell phone. Judge Rogers’ opinion chronicles the efforts by government authorities to investigate a multi-state drug operation that utilized “pay as you go” cell phones … Continue Reading

The Sixth Circuit Finds An Antitrust Exemption For Ohio Title Insurance Companies

In Katz v. Fidelity National Title Insurance Company (No. 10-3545), the Sixth Circuit held that title insurance companies are all but immune to private antitrust claims in Ohio.  The plaintiff alleged that twenty-two title insurance companies and the Ohio Insurance Rating Bureau violated antitrust law by pooling claims data and setting a collective and unreasonably … Continue Reading

The Refusal To Confront Bad Precedent May Result In Sanctions

In the otherwise legally unremarkable decision in Waeschle v. Dragovic (11-1878), the Sixth Circuit warned that the failure to cite controlling precedent may result in sanctions.   The panel found that Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010) was “clear circuit precedent that rendered [the appellant’s] argument meritless.”  The Court criticized the appellant’s … Continue Reading

What to Expect During Oral Argument

Last August, we discussed recent procedural changes surrounding oral argument in the Sixth Circuit. In an effort to shed more light on the topic of oral argument in the Sixth Circuit in general, we recently observed three days of oral argument. We attended 18 oral arguments presented before various panels that, taken together, were composed … Continue Reading

Case Management in the Sixth Circuit: The Future of Oral Argument

As we previously reported, we are presently exploring the issue of case management in the Sixth Circuit and considering various facets of how the Sixth Circuit internally handles its cases.  One issue that attracts significant attention is the Circuit’s practice with respect to oral argument. As we discussed in our interview with Sixth Circuit Clerk … Continue Reading

Update on Judge Donald’s Confirmation Process

After our post yesterday regarding the Sixth Circuit confirmation process, a reader alerted me to an article in the Memphis Commercial Appeal that indicates that Judge Donald will receive a confirmation vote by the Senate on September 6.  Judge Donald was unanimously reported out favorably by the Senate Judiciary Committee in early May and has … Continue Reading

Confirmation of Sixth Circuit Judges Receives Scrutiny

We have previously reported on the confirmation status of Judge Bernice Donald, who President Obama nominated for the seat vacated by Senior Circuit Judge Gilman.  Professor Carl Tobias has written an interesting article about the confirmation process as it relates to circuit judges in the current Senate.  In this article, he focuses specifically on the … Continue Reading


Each year, at the close of the U.S. Supreme Court’s term, there are numerous presentations summarizing the past year in the Court’s decisions and trends.  We are not aware of anything similar with respect to the Sixth Circuit, so we decided to host one ourselves.  On September 8, we will host a free webinar (live … Continue Reading