Friday, July 20, 2018
Michael Kagan, Rebecca Gill & Fatma Marouf have published Invisible Adjudication in the U.S. Courts of Appeals, 106 Geo. L.J. 683 (2018). Here’s the abstract:
Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many—and in a few circuits, most—decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system.
Thursday, July 12, 2018
Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, A Step Toward a Proper Understanding of Constitutional Litigation. Howard reviews Jonathan Mitchell’s recent article, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018).
Tuesday, June 26, 2018
Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:
Sudan v. Harrison presents the question:
Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Nutraceutical Corp. v. Lambert presents the question:
Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).
The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?
And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)
Thursday, June 21, 2018
Sarah Swan has published Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018). Here’s the abstract:
When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities.
Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.
Thursday, June 7, 2018
Rorie Spill Solberg (Oregon State Univ., Department of Political Science, School of Public Policy) and Jennifer Segal Diascro (University of California Washington Program (UCDC)) have published an article entitled "A Retrospective on Obama's Judges: Diversity, Intersectionality, and Symbolic Representation" in the Journal of Politics, Groups, and Identities. Here's the abstract:
"Despite abundant attention to the judicial selection of U.S. Supreme Court justices, most federal legal disputes are resolved in the lower federal courts. Who the judges are and how they make their decisions matters enormously in a democracy that values the fair and equitable treatment of its citizens under the rule of law. Our focus in this study is on the demographic diversity of President Obama’s appointments to the lower federal bench. It is clear from the various methods of examining the numbers that Obama valued diversity – perhaps more so than any previous president. When we examine all lower courts in the aggregate, and then district and circuit courts separately, the total number of successful nominees, the replacement patterns for departing judges, and comparisons between active and senior status judges, we see a concerted and largely successful effort to increase symbolic representation on the federal judiciary. Under different political circumstances, the data would lead us to consider novel complexities in diversifying the federal bench in the next several years. But a Trump presidency and its expected focus on ideology over diversity is likely to lead the study of judicial selection in a different direction, at least for the time being."
Tuesday, June 5, 2018
Brad Shannon has published Reconciling Subject-Matter Jurisdiction, 46 Hofstra L. Rev. 913 (2018). From the conclusion:
Current subject-matter jurisdiction practice, though well-entrenched, seems upon closer examination to be somewhat indefensible. Changes should be made. Federal Rule of Civil Procedure 8 should be amended to eliminate the pleading of subject-matter jurisdiction. This should help obviate the need to respond to allegations of this nature. Moreover, Rules 12 and 60 should be amended to prevent the assertion of this defense beyond the pleading stage (except in the default judgment context). Such a move would significantly (and appropriately) limit the ability to raise this defense on direct or collateral review. It would, in short, help “secure the just, speedy, and inexpensive determination of every action.” Perhaps more importantly, the practice relating to federal subject-matter jurisdiction would be reconciled with that relating to other “jurisdictional” concepts such as personal jurisdiction and venue, as well as state subject-matter jurisdiction practice, which has avoided many of these problems without incident.
Alas, sound reasoning might not be enough to get the Rules Committee to proceed on some of these matters. Tradition is a powerful thing. Moreover, the fact that the amendments proposed here would, in actuality, have little effect on post-pleading practice, though seemingly a virtue, might actually be a deterrent. Hopefully it will be enough that these amendments would promote simplicity, uniformity, predictability, and avoid unnecessary waste. Exceptions might be unavoidable regardless of which way one goes on these issues, and cases probably will continue to be decided suboptimally. The questions for now relate to baseline presumptions and how best to minimize errors and increase the efficiency of the federal courts.
Monday, June 4, 2018
Today the Supreme Court issued a 6-3 decision in Hughes v. United States (covered earlier here and here). The dispute between the litigants involved the defendant’s eligibility to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines. Two of the three questions presented in the defendant’s cert petition, however, involved how to determine the precedential effect of Supreme Court decisions with no majority opinion—an inquiry that is typically assessed using the rule from Marks v. United States. Marks played an important role in Hughes because the key Supreme Court decision on the substantive sentencing question—Freeman v. United States—was a 4-1-4 split.
In today’s Hughes opinion, the Court declined to address broader Marks-related issues. From Justice Kennedy’s majority opinion:
To resolve these differences over the proper application of Marks and the proper interpretation of §3582(c)(2), the Court granted certiorari in the present case. 583 U. S. ___ (2017). The first two questions, relating to Marks, are as follows: (1) “Whether this Court’s decision in Marks means that the concurring opinion in a 4–1–4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other”; and (2) “Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman, or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.” Pet. for Cert. i.
The third question is directed to the underlying statutory issue in this case, the substantive, sentencing issue the Court discussed in the three opinions issued in Freeman. That question is: “Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.” Pet. for Cert. ii.
Taking instruction from the cases decided in the wake of Freeman and the systemic concerns that have arisen in some Circuits, and considering as well the arguments of the parties as to question three, a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman.
As to the substantive sentencing question in Hughes, Justice Kennedy writes:
To resolve the uncertainty that resulted from this Court’s divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.
Justice Sotomayor writes a concurring opinion, and Chief Justice Roberts writes a dissenting opinion joined by Justices Thomas and Alito.
Wednesday, May 30, 2018
Tara Grove has published The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018). Here’s the abstract:
The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long-standing norms, federal judges should take none of their current protections for granted.
Monday, May 14, 2018
Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.”
The Court rejected both theories and found that the case was moot. In conclusion, however, Chief Justice Roberts observed:
None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.
Tuesday, May 8, 2018
Ninth Circuit Decision in United States v. County of Maricopa: Joe Arpaio, Policymaker Liability & Issue Preclusion
Yesterday the Ninth Circuit issued a unanimous decision in United States v. County of Maricopa. The opinion begins:
The United States brought this action to halt racially discriminatory policing policies instituted by Joseph Arpaio, the former Sheriff of Maricopa County, Arizona. Under Arpaio’s leadership, the Maricopa County Sheriff’s Office (MCSO) routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting violations of federal immigration law. Based on that and other unlawful conduct, the United States sued Arpaio, MCSO, and the County of Maricopa under two statutes: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141). The district court granted summary judgment in favor of the United States on the claims relating to the unlawful traffic stops; the parties settled the remaining claims. Maricopa County is the lone appellant here. Its main contention is that it cannot be held liable for the unlawful traffic-stop policies implemented by Arpaio.
The panel’s decision affirms the district court’s ruling. It concludes that: (1) Arpaio was a final policymaker for the county; (2) policymaker liability applies under Title VI and § 12601; and (3) the county is bound as a matter of issue preclusion by the findings in the earlier litigation against Arpaio.
Friday, April 27, 2018
Yesterday the Supreme Court adopted amendments to the Federal Rules of Civil Procedure (covered earlier here) and transmitted them to Congress. These amendments affect Rules 5, 23, 62, and 65.1. Unless Congress intervenes, they will take effect on December 1, 2018.
Wednesday, April 25, 2018
Yesterday the Supreme Court issued a 7-2 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, covered earlier here. Justice Thomas’s majority opinion begins:
The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.
Justice Gorsuch writes a dissenting opinion, joined by Chief Justice Roberts, arguing that the statutory scheme violates Article III: “Today’s decision may not represent a rout but it at least signals a retreat from Article III’s guarantees.”
Tuesday, April 24, 2018
Today the Supreme Court issued its decision in Jesner v. Arab Bank, PLC, which addresses whether corporations may be liable in actions brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. It’s a fractured decision, as evidenced by the following notation at the end of the syllabus:
KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
There are 85 pages worth of opinions, but the very brief takeaway (from Part II-B-1 of Justice Kennedy’s opinion, slip op. at 19) is that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”
And from Part II-C, slip op. at 27: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.”
Justice Sotomayor’s dissenting opinion argues that foreign corporations should not be categorically immune from liability under the ATS.
Monday, April 23, 2018
Today a panel of the Ninth Circuit issued its decision in Naruto v. Slater (the Monkey Selfie case), covered earlier here. People for the Ethical Treatment of Animals (PETA) brought suit as the next friend of Naruto, who “was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia.” The majority opinion by Judge Carlos Bea begins:
We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.
Although the majority opinion stated that “[w]e gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey,” it wrote:
Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes “next friend” lawsuits, obligates the court “to consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” U.S. v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has “broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 2556 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”)). See also Harris v. Mangum, 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem . . . could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).
Proceeding to Naruto’s constitutional standing, the majority concluded that Naruto’s claim satisfied Article III:
Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.
In reaching these conclusions, the majority found that it was bound by an earlier Ninth Circuit decision—Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In a footnote, however, the majority argued that Cetacean was “incorrectly decided” and “needs reexamination.”
Ultimately, the panel found that the district court correctly dismissed the case because “Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”
Judge N.R. Smith wrote a concurring opinion that disagreed with the majority’s handling of PETA’s lack of next-friend standing.
Thursday, April 19, 2018
Today the Seventh Circuit issued its decision in City of Chicago v. Sessions. The court upheld an injunction blocking the Trump administration from imposing restrictions on recipients of federal public safety grants. Those restrictions included what is known as the “notice” condition, “mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens,” and what is known as the “access” condition, which “required the local correctional facility to ensure agents access to such facilities and meet with those persons.”
Among other things, Judge Rovner’s majority opinion (joined by Judge Bauer) affirmed the district court’s decision to impose an injunction on a nationwide basis:
The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.
Judge Manion dissented in part, arguing that “the entry of the nationwide injunction constituted an overstep of the district court’s authority.”
Wednesday, April 18, 2018
Last week the Ninth Circuit issued an order denying a joint motion to dismiss the appeal in NARUTO, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER (a.k.a. the Monkey Selfie case). Here is the full order:
Having reached a settlement, the parties moved—two months after oral argument—to dismiss the appeal and to vacate the lower court’s judgment. In denying the motion, the court noted that voluntary dismissals are permissive, not mandatory, under FRAP 42, and that “denying the motion to dismiss and declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences.”
The court also observed that Naruto himself was not a party to the settlement between PETA and the appellees.
Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.
Today the Supreme Court issued its decision in Wilson v. Sellers, covered earlier here. The Court splits 6-3 over the proper standard for assessing unexplained state court decisions in the context of federal habeas proceedings. Justice Breyer writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch writes a dissenting opinion, joined by Justices Thomas and Alito.
Justice Breyer’s majority opinion begins:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101–102 (2011).
When the last state court to address the merits of the petitioner’s claims does not provide any reasons, however, this inquiry is “more difficult.” Here’s what federal the federal habeas court should do:
We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.
This “look through” approach is different from the one urged by the State (and by the dissenters). That approach would have precluded federal habeas relief as long as a reasonable basis “could have supported” the state court’s rejection of the petitioner’s claims.
The big question going forward will be what is required to rebut the majority’s look-through presumption. One particular issue will be the extent to which the unreasonableness of the looked-through-to lower state court opinion will itself be a basis for rebutting the presumption that the highest state court adopted that same unreasonable reasoning. Justice Breyer indicates that “it is more likely that a state supreme court’s single word ‘affirm’ rests upon alternative grounds where the lower state court decision is unreasonable than, e.g., where the lower court rested on a state-law procedural ground” and that “the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning.”
Justice Gorsuch’s dissent emphasizes this aspect of the majority opinion, calling it “welcome news of a sort.” He writes: “If, as the Court holds, the ‘look through’ presumption can be rebutted ‘where the lower state court decision is unreasonable,’ it’s hard to see what good it does.” It is not clear that the majority’s opinion goes as far as Justice Gorsuch suggests. But what will be sufficient to rebut the majority’s look-through presumption is likely to be a major issue in the wake of the Court’s decision.
Monday, April 16, 2018
Friday, April 13, 2018
Andrew Bradt and Zach Clopton have published their essay, MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation, 112 Nw. U. L. Rev. 905 (2018). Here’s the abstract:
Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.
In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally.