Unfortunately, I was not able to attend this morning’s oral argument in the Sherrod appeal. The Legal Times’ summary is here. The Washington Post summary is here. And another summary is here. Both the Legal Times and the Washington Post articles point out that there are a variety of other issues in Sherrod that could prevent us from getting a definitive answer on whether the statute can be used in federal court, including whether the motion was timely made, whether it applies to conduct that pre-dated the statute’s effective date, or whether it can be immediately appealed (I’ve discussed all three issues here).
As I’ve written before, if Sherrod doesn’t resolve “the Erie question,” it is also teed up for the DC Circuit in Farah v. Esquire. Stay tuned.