Monday, December 8, 2008
There are two cases at the court that may of interest to Con Law scholars. First, last week the Court heard arguments in an Equal Protection case that may have far reaching implications. The Court must decide whether Title IX bars a plaintiff from also suing under the Equal Protection Clause. Essentially, the Court would force plaintiffs to choose which claims to pursue quite early in the litigation. David Cohen of Feminist Law Professors has great analysis. Slate's Dahlia Lithwick also has analysis along with a detailed recap of the oral argument.
Second, just when you thought economic due process had breathed its last, it returned to the Court last week in the form of an Oregon jury verdict againt Phillip Morris for nearly 80 million dollars. (SCOTUS Blog's analysis and factual rundown is here.) Technically, the case is *not* about due process, as the Oregon court previously stated (this is PM's third time challenging the verdict before the Court) that it would not need to use the State Farm standard if there were an adequate and independent state law grounds. PM argues that the state court was bound to follow the State Farm standard. The state court's failure is the central issue, but the Washington Post reports that at oral argument, Chief Justice Roberts surprisingly raised the due process issue for the Court. So, the court may yet look at the issue - again. However, the actual issue in the case is fascinating in and of itself - what is or should be the appropriate remedy when a state court fails to follow the Supreme Court's instructions on remand? PM says that a new trial is the only remedy. This question is interesting. As always, we'll keep watching.