October 20, 2008
Nebraska to Amend its "Leave Your Child Behind" Law
There's an article here about a Nebraska statute that allows parents to abandon their "children" at a hospital without fear of prosecution, and how it was interpreted to permit abandonment up to age 18. I love it. They're now amending it to limit it to 3 day old infants....
Thomas on Interpreting the Constitution
An interesting exerpt from a talk he gave is here.
October 15, 2008
A Rant About US News Law School Rankings
Having seen Wicked the other night, I'm inspired by some analogies.
First, the USNews rankings are like the Wizard of Oz himself: if you peak behind the curtain, there's not much there. Why do I say that? I just filled out the form ranking all the law schools. (Why me? I'm the most recently tenured faculty member here at Mercer, and so they send it to me, along wih the dean, associate dean, and presumably some others). This form is what they tally up (along with similar forms from judges and practicing lawyers) to come up with the rankings. Here's what it consists of: a list of the 180 or so law schools, with a box next to each one, ranging from 5 (outstanding) to 1 (marginal) and a zero for I don't know. No site visits, etc. Now, they do gather some objective statistics -- how many books are in the library; how many students apply versus how many are accepted, etc., average lsat scores, etc., -- but these reputational scores count for a lot, and consist of this little 1-to-5 chart.
But, they're also like the Wizard of Oz in other ways: most people don't know what's behind the curtain, and so there's a lot of power. Students make choices based upon these rankings; decisions about how many students to accept are based upon rankings (lsat 75th and 25th percentiles matter, for example); and about who gets scholarships (if you want your LSAT to go higher, you target lsat numbers that are "high' for your school, rather than students who may bring diversity or other good aspects to a school, for example).
And, imho, they're a lot like the wicked witch. You have no idea what a racket this thing has become. Some schools, for example, have made students with low lsat scores start as "part time" students, so their scores don't have to be reported. Other schools have small first year classes (their scores, only, count), but then bring in huge numbers of transfers, to get revenue up without affecting their "scores." That's only a part of it.
No, I don't have anything better to suggest. But what we have is broke and needs a fixin'.
October 14, 2008
Interesting Separation of Powers Discussion on Volokh
You can read it here. My co-author, Linda Jellum, has authored a paper (forthcoming in UCLA Law Review) on this issue, and we'll get a post up here as soon as it's out, or you can e-mail her for a copy.
October 09, 2008
Eleventh Circuit Issues First Impression of Ephedrine Statute
With a tip of the hat to Ted McClure at Phoenix School of Law, and the FDA Law Blog, the Eleventh Circuit in Hi-Tech Pharmaceuticals, Inc. v. Crawford, __ F.3d __ (11th Cir. Oct. 7, 2008), issued an opinion of first impression concerning 21 USC 342(f)(1). Basically, after exhaustive hearings, the FDA declared in a final rule that dietary supplements with ephedrine alkaloids in them were "adulterated because they present an unreasonable risk." When the FDA went to enforce this rule against Hi-Tech, it did not present any independent evidence that, in fact, ephedrine was unreasonably risky; instead, it simply relied on its final rule.
The defendant appealed the seizure of its products, and argued that summary judgment in favor of the FDA had been improperly granted -- no evidence supported its position -- and the final rule could not substitute for evidence because 21 USC 342(f)(1) stated that the US had the burden of proof to show that a supplement was adulterated by a preponderance of the evidence and "the court shall decide any issue... on a de novo basis." Thus, argued the defendant, the de novo basis required evidence, not just the final rule.
The Eleventh Circuit disagreed. It spent almost no time on the text, instead turning to the legislative history. (The bridge to the legislative history wasn't ambiguity, but instead the lack of appellate construction!) Ultimately, the court stated:
The statute does not say that the applicability of a regulation promulgated by an executive agency, through an extensive administrative procedure cannot be sufficient proof of adulteration. And the legislative history does not so indicate. Indeed, that history suggests the opposite: that the statute empowers the FDA to settle the issue of adulteration through rulemaking and that additional proof to a court will not be necessary.
The statute does not say that the applicability of a regulation promulgated by an executive agency, through an extensive administrative procedure cannot be sufficient proof of adulteration. And the legislative history does not so indicate. Indeed, that history suggests the opposite: that the statute empowers the FDA to settle the issue of adulteration through rulemaking and that additional proof to a court will not be necessary.See
S. Rep. No. 103-410, at 35.
October 06, 2008
The Election and SCOTUS
The preemption issue -- where are the conservatives? -- that comes up in the cigarette case, to be heard this week, is discussed in the local Maine paper here (h/t to How Appealing).
October 05, 2008
CAFA v. Securities Exchange Act Antiremoval Provision
There's an interesting case from the Southern District of New York, unfortunately not on line but if you have westlaw, click here, New Jersey Carpenters Vacation Fund v. Harborview Mortg. Loan Trust 2006-4, 2008 WL 4369840 (S.D.N.Y. Sept. 24, 2008). It addresses whether the removal provision of the Class Action Fairness Act of 2005, Pub.L. 109-2, § 4(a), 119 Stat. 9, Feb. 18, 2005 (“CAFA”), trumps the anti-removal provision of Section 22(a) of the Securities Act of 1933, 15 U.S.C. § 77a et seq.
The court relies on the "general/specific" rule, legislative history, and some guessing, to harmonize the two.
28 USC 1367
Each year, I teach supplemental jurisdiction as part of my civil procedure class, and each year I run into the Supreme Court's dicta in Exxon v. Appalatah (sp). In that case, the question was if one plaintiff met the minimum amount in controversy, and another plaintiff did not, but both plaintiffs were diverse from the defendant, did supplemental jurisdiction exist? The court held that it did: under the literal terms of 1367(a), there was original jurisdiction over the first plaintiff's claim, and because the second plaintiff's claim arose out of the same case/controversy as the first, the second plaintiff's claim was within 1367(a) and, because it was not against a party joined under Rule 20 (or any rule, for that matter), the claim was not excluded by 1367(b).
And the Court was right.
The Court, though, wrote more about an issue it wasn't facing than it did about the issue it was: what if one plaintiff is diverse and meets the minimum amount in controversy, and the second plaintiff meets the amount in controversy, but was not diverse from the defendant. In extremely long opinions, the court said that 1367(a) would not even be an issue because the second plaintiff's citizenship would "pollute" or "contaminate" the first plaintiff's, and there would be no original jurisdiction at all.
Maybe under 1332 that is the right analysis, but each time I read 1367, I come to precisely the opposite conclusion: by its own terms, 1367(a) gives courts jurisdiction over joinder of parties when joinder is not within 1332.
Anyhow, it drives me nuts. I've read the cases on it, and the law review articles, and they all come up with really neat theories, all of which ignore the language of the supplemental jurisdiction statute, and none of whcih can be harmonized with the holding in Exxon, other than "pollution," which, imho, is a concept that has nothing to do with 1367.
Anyhow, you now know what I'm in the midst of teaching... again!
September 29, 2008
Preemption of State Law on Forefront of Supreme Court Coming Term
There's an article here that begins:
The Roberts Court's affinity for issues close to the heart of the nation's business community will continue into the October 2008 U.S. Supreme Court term as the justices take on major questions concerning federal pre-emption of state tort suits, environmental regulation, workplace discrimination, arbitration, pensions and antitrust.
The Court has agreed to decide 15 business-related cases thus far...
Meanwhile, the market has plummeted 777 points....
September 24, 2008
BAPCA Provision Held Violative of First Amendment
In Milavetz, Gallop & Milavetz, P.A. v. U.S., __ F.3d __ (8th Cir. Sept. 2008), the court analyzed whether certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)—11 U.S.C. §§ 526(a)(4) and 528(a)(4) and (b)(2) -- were unconstitutional restraints on speech, and found one was. Part of the Worst Statute in the World goes down in flames.
September 23, 2008
State Split on Ricks/Chardon Rule Continues
Woomert v. Iowa Civil Rights Commission, __ N.W.2d __ (Iowa App. June 25, 2008), deals with the broad question of when a state should follow a federal interpretation of a federal statute that was the basis for the state statute, but an interpretation that came after the state adopted its statute. I personally don't think any "weight" should be given to the subsequent opinion since it was not in existence at the time of adoption. It may be right, mind you, but it's not the same as statutory text, or an interpretation which pre-dated adoption. The language of Iowa's civil rights act concerning the trigger for the 180 day limitation period is nearly identical to the federal statute. The federal civil rights act requires that a charge be filed within 180 days “after the alleged unlawful employment practice occurred.” 42 U.S.C.2000e-5(e)(1) (2000). Iowa Code section 216.15(12) requires that a complaint be filed within 180 days “after the alleged discriminatory or unfair practice occurred.”
the fact that courts split, but the Iowa court held that it would consistently follow even post-enacted interpretations makes me wonder.
September 18, 2008
The Ebb and Flow of 28 USC 1331
In a nutshell, the Supreme Court in Grable expanded the interpretation of "arising under" in terms of the "substantial federal question" doctrine: a claim, created by state law, can nonetheless "arise under" federal law if it involves a substantial federal question. Shortly after Grable, the Federal Circuit held that legal malpractice cases based upon patent litigation or patent prosecution 'arose under' federal law. The Fifth Circuit, somewhat in contrast, just held that a claim that a lawyer botched a trademark action (under federal law) did not present a substantial federal question. Sing v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008). Stay tuned on this narrow but critical issue.
September 14, 2008
Litigation over Wiretaping and FISA Still Proceeds. There's an article here.
Yes, Virginia, There is Something Worse Than Impeachment for a Federal Judge. Judge G. Thomas Porteous found out that, as you can read here.
Bad News For Pretty Much Everyone. Virginia's Anti-Spam statute was struck down on First Amendment grounds. The article is here, the case, Jaynes v. Virginia, __ S.E.2d. ___ (Va. Sept. 12, 2008), here.
September 09, 2008
Interesting District Court Holding on Preemption by Vaccine Act. The article about the case is here, and begins:
A Philadelphia judge has ruled that a federal law governing the liability of pharmaceutical companies for drug vaccines pre-empts state tort claims of design defect and failure to warn in the products liability case of an 11-year-old boy who has autism.
In an apparent case of first impression, Philadelphia Common Pleas Judge Arnold L. New wrote an Aug. 27 opinion required under Pennsylvania Rule of Appellate Procedure 1925 to affirm his decision to grant summary judgment in favor of pharmaceutical defendants Aventis Pasteur Inc., Merck & Co. Inc. and Wyeth in Wright v. Aventis Pasteur.
Judicial Nominees Wait Nearly a Year for Confirmation. The WSJ has an interesting op ed here.
Anti-chain Zoning Law Violates Dormant Commerce Clause. There's an article from, of all places, Macon.com (formerly home to the Macon Whoopee hockey team) here, and the two opinions in Cachia v. Islamorada, Village of Islands, __ F.3d ___ (11th Cir. 2008), on different issues are here, and here.
September 08, 2008
Meaning is Plain to Two Circuits ... but a Circuit Split
Love this: "Although they agree that
the plain language of the statute resolves the dispute, they
reach directly opposite conclusions." Bodine v. Graco, __ F.3d __ (9th Cir. 2008) (citing Owens v. Samkle Auto. Inc., 425 F.3d 1318 (11th Cir. 2005) (per curiam); Ioffe v. Skokie Motor Sales, Inc., 414 F.3d 708 (7th Cir. 2005).
The issue? Whether the Motor Vehicle Information and Cost Savings Act (“the Odometer Act” or “the Act”), 49 U.S.C. §§ 32701-32711, and its implementing regulations, 49 C.F.R. pt. 580, allow a private right of action where the fraud relates to something other than the vehicle’s mileage, such as its accident history.
Interesting fun read.
September 05, 2008
Amendment to California Bar Act Retroactive
This is an interesting retroactivity case. Although disbarred lawyers had long been responsible for paying the costs of disbarment, a 2003 amendment to the state bar act created a specific enforcement mechanism, rather than leaving it the disbarred lawyer to voluntarily pay. A lawyer was disbarred and at that time there was no enforcement mechanism in place, but six months later the statute was amended to create it. The bar sought to use the mechanism, and the disbarred lawyer argued the enforcement mechanism could not be used against him, as it was not intended to operate retroactively and its retroactive application would violate the law. Gadda v. St. B. of Cal., 511 F.3d 933 (9th Cir. 2007). It's an interesting read, particularly because the text did not indicate retroactivity but the court immediately went to the legislative history, which clearly stated that it was intended to apply to pending cases. It then quickly rejected the ex post facto and due process challenges.
September 04, 2008
Interesting split on sentencing guidelines as ex post facto laws in U.S. v. Andrews, __ F.3d __ (D.C. Cir. 2008), with one judge concurring.
[I]n... United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that "the ex post facto clause should apply only to laws and regulations that bind rather than advise." United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006). Some other courts have indicated their agreement. See United States v. Mathis, 239 Fed.Appx. 513, 517 n. 2 (11th Cir.2007); United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir.2007) (Jones, C.J., concurring). The Eighth Circuit, however, disagrees. See United States v. Carter, 490 F.3d 641, 643 (8th Cir.2007). And several other circuits also appear to regard the ex post facto analysis as unchanged, continuing to apply Guidelines § 1B1.11(b)(1) in the same way they did before Booker. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir.2007); United States v. Wood, 486 F.3d 781, 791 (3d Cir.2007); United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007); United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir.2006).
We do not need to decide which side of that circuit split we would join in order to resolve this case. “Even assuming the district court erred, ... absent an opinion by this circuit or the Supreme Court on the issue in dispute, there is no plain error unless [the] district court failed to follow [an] ‘absolutely clear’ legal norm....” United States v. Vizcaino, 202 F.3d 345, 348 (D.C.Cir.2000) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C.Cir.1993)). And there is no such absolutely clear norm here.
One judge concurred, essentially stating that the ex post facto need not have been reached because of other grounds.
August 26, 2008
Conference Announcement - Belfast October 2008
Presuming to Interpret: Basic Principles of Lawin Stautory Interpretation, will be held on October 10 to 12, 2008 in Belfast, Ireland. It's sponsored by the Statute Law Society and will feature sessions on comparative interpretation and other interseting issues. The brochure is here.
Ninth Circuit Issues Contextual Opinion on Bankruptcy Act § 363(f)(5)
In Clear Channel, Inc. v. Knupfer, __ F.3d __ (9th Cir. July 18, 2008), the court issued a fairly thoughtful analysis of § 363(f)(5) and related provisions, including an interesting discussion of the textual history of the statute as well as Professor John Manning's views on textualism
August 22, 2008
Split on Whether Cases Can be Removed from State Agencies
I teach civ pro, and so this is particularly interesting to me. 28 USC 1441(a) authorizes removal of "any civil action brought in a State court" over which there's federal subject matter jurisdiction. What if it's an administrative proceeding? The issue was summarized just last week in Johnson v. Albertson's LLC, __ F.Supp.2d ___, 2008 WL 3286988 (N.D. Fla. Aug 06, 2008):
The Eleventh Circuit has yet to decide whether cases may be removed from state administrative agencies pursuant to § 1441, and if so, under what circumstances. See Bellsouth Telecomm., Inc. v. Vartec Telecom, Inc., 185 F.Supp.2d 1280, 1281 (N.D.Fla.2002) (noting that "[t]he issue of removal of an administrative proceeding is one of first impression in this circuit."). The decisions from other circuits are split on how to approach the issue. Some circuits have applied a "functional" test, allowing removal in cases in which a state administrative agency essentially functions as a court. See Floeter v. C.W. Transport, Inc., 597 F.2d 1100, 1101-02 (7th Cir.1979); see also Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 44 (1st Cir.1966) (dictum). Other courts have rejected the "functional" approach as contrary to the plain language of the removal statute. Oregon Bureau of Labor & Indus. ex rel. Richardson v. U.S. West Communications, Inc., 288 F.3d 414, 419 (9th Cir.2002); Sun Buick, Inc. v. Saab Cars, USA, Inc., 26 F.3d 1259, 1263 (3rd Cir.1994); County of Nassau v. Cost of Living Council, 499 F.2d 1340 (Temp.Emer.Ct.App.1974) (disapproving the functional test and stating that § 1441(a) contemplates removal from other court proceedings rather than the "interruption of administrative proceedings").
Given the growing trend to find "substantial federal questions" even in claims that arise under state law, this will be a growing issue, I would think.