Friday, June 28, 2013
This week the Supreme Court issued its much-anticipated decisions in Windsor v. United States (on the federal Defense of Marriage Act) and Hollingsworth v. Perry (on California’s Prop. 8). Both cases presented significant questions with respect to Article III jurisdiction and standing, which were excellently summarized earlier this year by Marty Lederman’s seven-part series for SCOTUSblog.
In Windsor, a five-Justice majority opinion authored by Justice Kennedy (joined by Ginsburg, Breyer, Sotomayor, and Kagan) found that Article III jurisdiction was proper and that the Court should not invoke prudential grounds to refrain from exercising jurisdiction; the majority then concluded that DOMA was unconstitutional.
In Perry, a five-Justice majority opinion authored by Chief Justice Roberts concluded that the intervenors who supported Proposition 8 lacked Article III standing to challenge the district court’s order declaring Prop. 8 unconstitutional and enjoining California officials from enforcing it. Perry was a particularly interesting 5-4 split: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, joined by Thomas, Alito, and Sotomayor.
From a jurisdictional standpoint, one crucial difference was that in Windsor, the federal government enforced DOMA (by denying Windsor the requested refund) and then proceeded to seek review of both the district court and appellate court rulings that DOMA was unconstitutional. As Kennedy puts it: “It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.” In Perry, on the other hand, the California government did not appeal the district court’s order and injunction. Perhaps the standing inquiry in Perry would have come out differently if the California government had adopted a litigation strategy similar to the one the U.S. government took in Windsor.
For anyone counting heads, here’s how each Justice came down on the Article III issues in both cases:
- Kennedy, Alito and Sotomayor supported exercising jurisdiction in both Windsor and Perry. (Alito is somewhat unique as to Windsor, because he argued that the U.S. government “clearly is not a proper petitioner” given its position that DOMA was unconstitutional; he argued instead that jurisdiction was proper because the House of Representatives’ Bipartisan Legal Advisory Group had standing as intervenors.)
- Roberts and Scalia opposed exercising jurisdiction in both Windsor and Perry.
- Ginsburg, Breyer and Kagan supported jurisdiction in Windsor and opposed jurisdiction in Perry.
- Thomas supported jurisdiction in Perry and opposed jurisdiction in Windsor.
Thursday, June 27, 2013
From The Legal Intelligencer, part 3 of 3:
Each state and federal court might have its own inviolable power to adjudicate cases and issue orders within its territory. But that does not stop judges from cooperating in the face of mass-tort litigation that arises both in state and federal court.
U.S. District Judge Barbara Jacobs Rothstein, of the Western District of Washington and a visiting judge to the U.S. District Court for the District of Columbia, said that for many years input was not obtained from state-court judges, but that has changed.
Wednesday, June 26, 2013
From The Legal Intelligencer, Part 2 of 3:
The number of mass torts filings in the United States hasn't seen a precipitous drop-off, but profit margins for the law firms defending those cases have taken a hit.
A confluence of events over the past five years has caused mass torts work, namely in the pharmaceutical space, to face increasing rate sensitivity. That has caused firms to either reconfigure their mass torts practices or de-emphasize the work altogether. Even some still involved with defending mass torts now use the once lucrative work more as a springboard for other assignments in practice areas facing less rate pressure.
Tuesday, June 25, 2013
The Philadelphia Court of Common Pleas, recently a hotbed for mass-tort litigation, may have seen its mass claims drop by 70 percent in 2012. But that does not mean that mass torts are slackening elsewhere.
Lawyers told The Legal that mass-tort cases are being filed in other jurisdictions because of the uncertainty that was created after many administrative changes were made to the Complex Litigation Center, including the end of reverse bifurcation and the end of consolidation in pharmaceutical cases.
Monday, June 24, 2013
With all of this week’s end-of-the-Term anticipation and excitement, some of today’s cert. grants may have slipped below the radar. But here are two cases that will be argued next Term that may be of interest: