Saturday, February 25, 2012
Now available in the University of Pennsylvania Law Review’s PENNumbra is Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption by Prof. Howard Wasserman (Florida International). It begins:
On January 11, 2012, the Supreme Court decided the first significant case of the October 2011 Term, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. A unanimous Court held that a “called” teacher (a commissioned Lutheran minister) teaching secular subjects from a Christ-centered perspective could not prevail in an action challenging her termination under the Americans with Disabilities Act (ADA). The Court for the first time recognized the “ministerial exemption” to the ADA and other federal employment discrimination laws, affirming the uniform position of the federal courts of appeals . . . A second open issue surrounded the ministerial exemption prior to Hosanna-Tabor: its proper jurisdictional characterization. Is the exemption a jurisdictional limitation or an aspect of the merits of a claim? Does it reflect a First Amendment limitation on the reach of substantive secular law into matters of faith, doctrine, and church governance? Or does it limit the adjudicative jurisdiction of the courts in which such disputes might be resolved? Put differently, if and when the ministerial exemption defeats a claim in federal court, does the claim fail because the court lacks subject matter jurisdiction or because the plaintiff’s claim fails on the merits?
Friday, February 24, 2012
The first paragraph of Lofton v. McNeil Consumer & Specialty Pharmaceuticals, No. 10-10956 (5th Cir. Feb. 22, 2012), http://www.ca5.uscourts.gov/opinions/pub/10/10-10956-CV0.wpd.pdf:
Christopher M. Lofton tragically died from a rare disease called Toxic Epidermal Necrolysis (“TEN”) after taking Motrin. Lofton’s wife and children brought suit against the Appellees [Defendants] asserting that Motrin caused the disease and the Appellees had failed to warn consumers about the risk of these severe autoimmune allergic reactions. The district court entered summary judgment for the Appellees. The only issue on appeal is whether the district court correctly found that federal law preempts a Texas tort reform law that requires plaintiffs to assert, in failure to warn cases, that a drug manufacturer withheld or misrepresented material information to the FDA. See TEX. CIV. PRAC. & REM. CODE § 82.007(b)(1). We agree with the district court and AFFIRM.
Alex Glashausser (Washburn) has a great OpEd in the HuffPo on the Supreme Court and the exceptions clause.
From the post:
The federal judiciary, with its life tenure for unelected judges, has long been a punching bag in certain arenas. Several presidential candidates have recently taken jabs. Rick Santorum has resolved to "fight back" against "judicial tyranny." Newt Gingrich used that same rhetoric in an interview last month and has clamored for impeachment proceedings to coldcock judges who issue what Congress deems to be "unconstitutional decisions." Commentators have rushed in to defend judges' jurisprudential independence. Overlooked in the fracas, however, has been the equal need to safeguard courts' jurisdictional independence.
Wednesday, February 22, 2012
Today the Supreme Court issued a 5-to-4 decision in a case involving the ability of Medicaid providers to bring suit challenging state laws that allegedly reduced reimbursement rates below what federal law required. The case is Douglas v. Independent Living Center (when cert. was granted, the case was captioned Maxwell-Jolly v. Independent Living Center, covered earlier here). Justice Breyer’s majority opinion (joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan) begins:
We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law—a federal law that, in their view, conflicts with (and pre-empts) state Medicaid statutes that reduce payments to providers. Since we granted certiorari, however, the relevant circumstances have changed. The federal agency in charge of administering Medicaid, the Centers for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal law. In light of the changed circumstances, we believe that the question before us now is whether, once the agency has approved the state statutes, groups of Medicaid providers and beneficiaries may still maintain a Supremacy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the reasons set forth below, we vacate the Ninth Circuit’s judgments and remand these cases for proceedings consistent with this opinion.
Chief Justice Roberts authors a dissenting opinion (joined by Justices Scalia, Thomas, and Alito), which states:
The Court decides not to decide the question on which we granted certiorari but instead to send the cases back to the Court of Appeals, because of the recent action by CMS approving California’s new reimbursement rates. But the CMS approvals have no impact on the question before this Court. If, as I believe, there is no private right of action under the Supremacy Clause to enforce §30(A), that is the end of the matter. If, on the other hand, the Court believes that there is such a cause of action, but that CMS’s recent rate approvals may have an effect on that action going forward, then the Court should say just that and then remand to the Ninth Circuit for consideration of the effect of the agency approvals.
Prof. Brooke Coleman (Seattle) has posted on SSRN a draft of her forthcoming essay, Summary Judgment: What We Think We Know Versus What We Ought to Know, which will appear in the Loyola University Chicago Law Journal. Here’s the abstract:
The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to be so saturated? This Essay answers that question by arguing that the work that has been done so far, while making an important contribution, does not begin to tell us what the true effect of summary judgment is on potential and actual litigants. This Essay argues that a key inquiry is missing: a systematic study of what is happening in summary judgment on the ground. In other words, what we do not know, but ought to know, is whether summary judgment sifts out meritorious cases and at what rate. We also need to know how the summary judgment process deters individuals with meritorious claims from filing. And, we need to know this information across the board, at both the state and federal level. The point of this Essay is to show that we think we know the answers to these questions based on the body of work that currently exists. While this body of work informs these inquiries, it does not answer them. This Essay argues that the use of this existing work to make principled arguments about the pros and cons of summary judgment will always fall short.
Monday, February 20, 2012