Friday, June 22, 2012
As we gear up for the last week of the current Supreme Court Term, it’s hard to see what more could be added to the speculation about what the Court will decide in the health care cases. There is, however, a potential parallel with one of last Term’s down-to-the-wire close-call cases: J. McIntyre Machinery v. Nicastro, which came down on the Supreme Court’s last opinion day in June 2011.
Toward the end of last Term, FantasySCOTUS predicted that New Jersey’s exercise of jurisdiction over the British defendant would be upheld in McIntyre. The prediction had a fairly low degree of confidence (55%), and indeed it was wrong—the Supreme Court rejected jurisdiction by a 6-3 vote.
Fast forward to June 2012: A recent survey of experts predicts that the individual mandate will be struck down, but with a probability level of just 57%. Perhaps another end-of-Term surprise is in order? Apples-to-oranges I'm sure, but that's why they call it speculation.
PS: According to Adam Liptak (New York Times), this coming Monday will not be the last day opinions are announced this Term. So we may be waiting until Wednesday or Thursday to hear the final word.
Thursday, June 21, 2012
Judge Posner authored an interesting opinion this week in Smentek v. Dart (7th Cir. No. 11-3261). The case raises issues flowing from the Supreme Court’s decision last Term in Smith v. Bayer Corp., which considered—and rejected—an attempt to preclude certification of a class action based on a different judge’s refusal to certify a similar class action brought by a different class representative. From Smentek:
The Court in Smith v. Bayer Corp. suggested other means for limiting copycat class action litigation besides preclusion, and the defendants in the present case, who have petitioned us for leave to appeal under Fed. R. Civ. P. 23(f) from the grant of class certification, have fastened on one of them: “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 198 (2000) (citing Landis v. North American Co., 299 U.S. 248, 254 (1936)).” 131 S. Ct. at 2382.
After noting that the “reference to ‘comity’ in Smith v. Bayer Corp. was cryptic,” and exploring a number of potential approaches, Judge Posner concludes:
We are left with the weak notion of “comity” as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary. We emphasize, however, the qualification in “materially identical.” Even two class actions involving the same class may differ materially, for example in the suitability of the class representative or the adequacy of class counsel, and where they do the judge in the second, or third, or nth class action is on his own. This is not such a case; nevertheless the district judge gave plausible reasons for her disagreement with the judges in the two previous Cook County dental cases. Can more be required? The defendants’ claim that she was bound by the decisions of the other judges just because those decisions preceded and were contrary to her decision has no basis in law and flouts the principle that a district court decision does not have precedential effect. Camreta v. Greene, 131 S. Ct. 2020, 2033 n. 7 (2011); Wirtz v. City of South Bend, 669 F.3d 860, 862-63 (7th Cir. 2012). The defendants would have such decisions treated not as mere precedents but as super-precedents that no court lacking appellate authority could question.
The district judge’s grant of class certification is therefore affirmed. But this is not to say that the judge’s ruling was correct; maybe the other two judges were correct. The appeal asks us to decide only whether comity between federal district judges’ rulings on class certification is preclusive. We have decided: it is not.
(Hat Tip: Howard Bashman)
Tuesday, June 19, 2012
According to this press release:
Tomorrow, Wednesday, June 20—the one year anniversary of the Supreme Court’s decision in Dukes v. Wal-Mart—Senator Richard Blumenthal (D-CT), Congresswoman Rosa DeLauro (D-CT) and Senator Al Franken (D-MN) will hold a press conference in the Capitol Visitors Center, Room SVC 212 at 2:15 pm, to announce that they are introducing legislation to restore the workers’ rights that were eroded by the Dukes decision. . . . The bill, called the Equal Employment Opportunity Restoration Act, would allow workers to hold employers accountable in cases of workplace discrimination by ensuring that employees can once again band together to challenge discriminatory employment practices.
While the nation waits with bated breath for the Supreme Court's ruling in the health care case(s), readers of this blog may be anticipating even more eagerly its decision in First American Financial Corp. v. Edwards, a case on Article III standing and this Term's oldest argued case without a decision. First American hasn't garnered as much chatter and speculation as bigger fish on the docket, but into that void comes this post from John Elwood (Volokh Conspiracy).
Monday, June 18, 2012
Last week the Supreme Court issued its decision in Elgin v. Department of the Treasury, a case with some interesting federal courts issues and that yielded an intriguing 6-3 split: Thomas writing for the majority, joined by Roberts, Scalia, Kennedy, Breyer and Sotomayor. Alito writes the dissent, joined by Ginsburg and Kagan.
SCOTUSblog’s Opinion Analysis, by Prof. Steve Vladeck (American University), is also worth a read.
Professor Brian Tamanaha of Washington University in St. Louis has published "Failing Law Schools," a book criticizing American legal education. According to the National Law Journal, "its central argument is that going to law school is a raw deal for most students."
Jonathan Wolfson, a Fifth Circuit clerk, has published "Warring Teammates: Standing to Oppose a Co-Party's Motion for Summary Judgment," 60 Drake L. Rev. 561.
summary judgment, who has standing to oppose the motion? Obviously the plaintiff
has standing to oppose, but what about the other co-defendant? Even supposing
the co-defendant has standing if the plaintiff opposes, is that standing
contingent on the plaintiff’s opposition? Current jurisprudence in federal
courts and prior scholarship are scarce and in disagreement which leaves parties
without ground on which to base their answers. A simple answer to this quandary
might assume parties sitting on the same side of a case may not oppose one
another (in the absence of cross-claims). This article contends that sides of
the case on which parties sit are an inappropriate focal point. The focus should
instead be on which side of a particular controversy parties stand. Individuals
opposed to co-party motions should have the opportunity to oppose because the
operative criterion is adversity of position.
The minimal judicial
consensus and legal literature discussing such a scenario creates prediction
problems for litigators in multi-party litigation. The lack of certainty may
generate confusion or even conflict between co-parties seeking to advance a
common objective – winning the lawsuit – while simultaneously advancing their
own unique interests – minimizing costs and damages for a particular client. The
unique interests can create a prisoner’s dilemma in which minimizing one party’s
losses may maximize a co-party’s. This article seeks to build a theory upon
which future legal consensus on co-party standing to oppose motions might be
This article derives and applies principles from appellate
standing and the right of intervention to support permitting co-party opposition
to motions. The “aggrieved” standard of appellate standing and intervention’s
justifications of “adequate representation” and “unique perspective” inform the
otherwise minimal development of a theory permitting co-party motion opposition.
Permitting opposition to co-defendant motions by co-parties would provide
predictability and ensure parties have their voices heard on issues of interest
without sacrificing courtroom efficiency.