Author Archive
Twombly and Iqbal: Reality Check
In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing.
There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.
We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.
Marie Gryphon on “Loser Pays”
Marie Gryphon, of the Manhattan Institute (and a Cato adjunct scholar), has a terrific new paper advocating a “loser pays” system to deter frivolous lawsuits. Here are excerpts from the executive summary:
This study argues that loser pays could be an important part of a larger effort to reduce litigation costs, better compensate prevailing litigants, and better align tort law with its goal of deterring socially harmful conduct. A loser-pays rule would discourage meritless lawsuits, but because any such rule should also ensure plaintiffs of modest means but strong legal cases access to justice, our proposal calls for:
- A robust litigation insurance industry similar to those that now exist in other loser-pays countries; and
- A cap on recoverable fees to eliminate the incentive that large litigants might have to attempt to “buy a verdict” under loser pays.
This study explores in depth how a loser-pays rule would change litigation in America. It includes key findings about the likely effects of loser-pays reform and evaluates previous experiments with loser pays in America.
The Status Quo
This study delves into the available evidence about how the legal marketplace works, which lawyers file low-merit lawsuits, and how they stay in business:
- The subgroup of lawyers that file most nuisance lawsuits works to obtain settlements in weak legal cases before its members ever see a courtroom.
- The American system facilitates nuisance lawsuits, since the high cost of defending against weak cases gives defendants a strong incentive to settle.
- In contrast to nuisance suits, low-merit mass torts and class-action suits are able to attract some of the best lawyers in the United States because the potential damages stemming from these suits make them very lucrative, even when they are settled for a small fraction of the amounts demanded.
Effects of Loser Pays
This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:
- Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.
Originalism vs. Class Action Reform
David Boaz once suggested that the Class Action Fairness Act—an important statute that federalizes lots of abusive lawsuits traditionally confined to states—gives federal courts power they shouldn’t have. In this article, I marshal new evidence of the Constitution’s original meaning that supports David.
In a nutshell: the evidence confirms an interpretation of the Constitution’s text advanced by (gasp!) Public Citizen’s litigation director Brian Wolfman. CAFA pins federal jurisdiction over state-filed class actions on the fact that many classes include members who are citizens of different states than the defendant. Congress, in turn, assumed these suits fall within federal courts’ jurisdiction over “controversies between citizens of different states.”
However, in congressional testimony on CAFA, Wolfman argued that proposed members of a class are not parties to a constitutional “controversy.” For reasons too technical to go into here, if Wolfman’s right that would punch a big gaping hole in CAFA, allowing plaintiffs’ lawyers to easily evade federal jurisdiction in lots of cases.
My evidence suggests Wolfman is correct—although Congress has the power to rewrite CAFA in a way that would make it constitutional. Unfortunately, as the article explains, a “fix” for CAFA is probably not politically feasible, at least in the forseeable future.
For more on the argument, which involves some pretty technical points of federal jurisdiction and class action law, see the abstract, posted here, and a longer excerpt from the article posted by Professor Larry Solum on his Legal Theory Blog here.
The bottom line: Tort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.
SCOTUS Hearts Obama?
Will the Supreme Court be more, or less, of a check on the president during an Obama administration?
My guess: Less.
First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president. His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.
Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency. As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which — while differing in many nuanced respects from Bush era legal framework for thinking about executive power — celebrates the president’s power to “jolt” bureaucrats “into action . . . [for] a distinctly activist and pro-regulatory governing agenda.” She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers. Look for judicial appointments with similar views.
Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush. As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power. Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.
The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive. The court likes the former kind of argument for obvious reasons — it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset. A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power. He probably will have more. As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.
Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics. My guess is he is likely to side more often with an administration he likes and trusts — and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.
I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.
Filed under: Government and Politics; Law and Civil Liberties
Save Wal-Mart, Save Class Action Law?
I’ve got a short Regulation Magazine piece on the notorious (or glorious, depending on your perspective) Dukes v. Wal-Mart case–a gender discrimination class action composed of as many as 2 million women, according to some estimates. You can read more about the case here and download my Regulation piece here.
Many believe the case is headed to the Supreme Court–if not this upcoming term, then the next. If it does, and if the Court takes up Wal-Mart’s constitutional arguments against certification, then, I argue, it might just set the stage for some far-reaching, and overdue, conceptual changes in the way we think about the constitutional rights of class action defendants. My piece uses Dukes as a springboard for sketching some of these defenses–admittedly quite adventurous–which just might become a bit less exotic if Wal-Mart succeeds.
Enemy of the People … ?
Below, Sigrid posts Walter Murphy’s much-blogged about claim that he has been watch-listed because of a speech he gave criticizing Bush’s constitutional record. Those interested in the story should also read the skeptical questions raised by Wired’s Ryan Singel, a Watch List critic, about Murphy’s story, which are available here:
Woe be it for this blog to defend the country’s foolish watchlist system, but after having spent more than four years reporting on watchlists, filing Freedom of Information Act requests, and talking with persons flagged by the lists, I have never seen a single case of a person being put on the list for activities protected by the First Amendment. …
I’m not even certain that in this case Murphy’s name matched or was similar to a name on the list – which is what has snagged nearly every David Nelson in the country and what got Senator Ted Kennedy a dose of handheld wanding.
In this case, I would guess that Murphy was singled out randomly. He himself says he wasn’t flagged on the way back, which he almost certainly would have been if he were on the ’selectee’ list. (The ’selectee’ list directs airlines to single out that person for extra screening, while a related list, the ‘no-fly’ list directs airlines to keep a person off a plane.)
I’m open to any evidence that the government has watchlisted American citizens for exercising their Constitutional rights, but I’ve never seen it.
The left wants to believe it is living in some version of Orwell’s 1984. … Around these parts, we prefer to see the world through a Kafka and Gilliam kaleidescope.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
More on Mass. v. EPA
ScotusBlog hosted a discussion of the Court’s environmental decisions this week, in which I participated. If you are interested in more legal analysis of these cases, you can access all of the ScotusBlog posts, pro and con, here. I also summarize my contributions to the discussion in a short podcast here.
Filed under: Energy and Environment; General; Law and Civil Liberties
Supreme Court to EPA: Hurry Up and Wait?
Lots of news outlets have been describing the Supreme Court’s opinion in Massachusetts v. EPA along the following lines: “Supreme Court says global warming is bad; tells EPA to fix the problem.”
Is that right? Not really.
In fact, if you read between the lines of the majority’s decision, its not clear that it will alter EPA policy one jot or tittle.
“Regulation,” under the Clean Air Act, can take a number of forms: It can take the form of declaring aspirational emission standards. Or it can take more draconian forms, such as looming technology mandates and imminent implementation deadlines, backed by tough civil and criminal penalties.
Even assuming that, after the Court’s decision yesterday, the EPA has to “regulate” in the sense of promulgating some GHG emission standards, the Court’s decision leaves the EPA with ample room to argue that it can defer deciding when and how to implement those standards in light of the potentially high and uncertain costs of implementation. Read the rest of this post »
Filed under: Energy and Environment; General; Government and Politics; Law and Civil Liberties
A Pox on Unanimity
In Slate, Doug Kmiec criticizes the Court’s decision in Philip Morris v. Williams for its lack of unanimity and argues, echoing the fashionable arguments of Chief Justice Roberts, that unamimity helps promote “clear rules” because judges must “work out their disagreements before they write their opinions.”
I’ve previously suggested (here) that this is backwards. Unanimous decisions are, on balance, likely to be less clear than 5-4 decisions:
It’s not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right. Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness. The more amorphous and open-ended the statute — the more the statute defers tough questions — the more members of Congress agree to add their names to it.
While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too: Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law.
In a very good post, Ilya Somin makes a similar point, writing in response to Kmiec, here:
Many of the complex balancing tests and complicated exceptions to rules that legal commentators like to make fun of in Supreme Court opinions are the result of the need to “count to five” — corral the five votes needed to create a binding Supreme Court decisons. Counting to nine is usually likely to require more compromise — and thus more complicated balancing tests and exceptions — than counting to five.
Philip Morris v. Williams and Class Actions
Yesterday, the Supreme Court decided–five to four–to strike down a punitive damage judgment against Philip Morris under the Due Process Clause. (Cato, for the record, filed this brief in the case, written by deterrence theorists Steven Shavell and A. Mitchell Polinsky). For commentary on the case, see here and here. You can watch me talk about the case on CNBC here.
For my money, the most interesting, and potentially far-reaching, implication of the decision is for class actions seeking punitive damages.
On page 5 of the slip opinion, the Court says that “the Due Process Clause” prohibits a State from punishing an individual “without first providing that individual with ‘an opportunity to present every available defense.’”
That quoted language (from a non-punitives decision, Lindsey v. Normet) hasn’t appeared in the Supreme Court’s other punitive damage cases. Its appearance here is significant, because Lindsey’s broad, bright-line language is often invoked by defendants in very large class actions, even those that don’t involve punitive damages. Their argument goes like this: When courts ”certify” (authorize) a very large class action, they violate due process if the very scale of the suit prevents defendants from raising individualized defenses that are otherwise available under the statute. Expect Williams to be cited extensively by class action defendants, particularly in class actions seeking punitive damages.
It’s fairly easy to see why Williams is such a boost for these defendants by looking at the Ninth Circuit’s recent decision in Dukes v. Wal-Mart–which upholds a trial court order certifying 1.5 million gender discrimination claims, seeking $11.5 billion in punitive damages and lost pay.
As the trial court acknowledged, individualized hearings on employees’ claims—the usual practice in later stages of Title VII cases—were impractical in a class action of the mammoth scale envisioned. The trial court therefore allowed liability and remedies to be proven based on statistical evidence and formulas, barring defendants from making individualized showings that particular employees weren’t discriminated against in fact.
Wal-Mart, in turn, argued its due process rights had been violated, because it had been deprived of defenses to which it was entitled. ”In an individual case,” said Wal-Mart, it could present individualized evidence “to establish a complete defense to liability or preclude the entry of a backpay or punitive damage award.” The Rules Enabling Act guarantees the availability of that kind of defense in a class action to the same extent it is available in an individual case. Given the punitive damage request, Wal-Mart argued, due process prohibited the court from depriving Wal-Mart of its entitlement to raise such individualized defenses.
Williams gives Wal-Mart much more ammunition than past punitive cases to argue this point on appeal to the Supreme Court. To be sure, the Court’s aside that “it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused” (emphasis added) throws a possible lifeline to the Dukes plaintiffs. That allows them to argue that a “rough” statistical measure of the harm that “could have been caused” to individual class members is all the proof necessary to anchor punitive damages in large antidiscrimination classes. Indeed, the trial court in Dukes envisions exactly such a probabilistic measure at the remedies stage of the trial: “[O]nly those class members who can make a showing that they were either actually harmed by the discriminatory policy or were at least ‘a potential victim of the proved discrimination’ are eligible to recover [lost pay and, therefore, punitive damages].”
This expansive reading of “potential harm” is, however, inconsistent with the Supreme Court’s careful caveat in BMW v. Gore. There, the Court said that “potential harm” that can anchor a punitive damages award is confined to additional harm to persons who have actually been injured – for example, added harm that was “likely to result” if a defendant’s wrongful scheme hadn’t been prematurely interrupted. That’s quite a bit narrower than the expansive concept of “potential harm” used in Dukes, which embraces guesstimates about whether any injury occurred at all.
As a result, Willliams, read in the context of previous cases, scores trouble for large-scale punitive damage classes.
More on Bush’s Surveillance Flip-Flop
Based on the DOJ briefing regarding the NSA surveillance about-face, it appears that the Foreign Intelligence Surveillance Court (FISC) is not approving surveillance on a program-wide basis. Instead, it is issuing individualized surveillance orders against particularized targets. It remains unclear, though, how exactly the FISA orders have changed to permit more “speed and agility” and, because so much is taking place within the dark, all suggestions are pure, unadulterated guess-work.
One compelling theory is Orin Kerr’s: namely, that the FISA court is issuing anticipatory warrants (warrants based on a finding that there is probable cause to search when a future triggering condition appears.) As Kerr notes, that’s consistent the one bit of evidence we can glean: that the FISA court is limiting the approval orders to a 90 day period, rather than the full statutory one year period permitted under FISA. Shorter review is consistent with ensuring that the triggering condition for the search and the probable cause requirement mesh. It also helps explain the timing, since the Supreme Court approved anticipatory warrants in United States v. Grubbs last term. (For more on Grubbs, read Professor David Moran’s article on last term’s Fourth Amendment cases, The End of the Exclusionary Rule, Among Other Things, in the latest Cato Supreme Court Review.)
Kerr’s theory, however, doesn’t explain one part of the puzzle: multiple sources’ statements to the Washington Post that the orders touch on ”programmatic” issues. What might this mean, if FISC is approving orders on a case-by-case, rather than program-level, basis?
One possibility is that DOJ has adopted a streamlined internal approval process for emergency FISA applications within the executive branch, and that FISC has approved it. FISA imposes some internal pre-approval requirements for emergency applications–including review by the AG and a cabinet level official with foreign affairs responsibility. In February testimony last year, Gonzales complained at length that this statutory approval process had become overly cumbersome:
To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances.
But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance.
This requirement can be cumbersome and burdensome. Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application. Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.
But even this is not the end of the story.
Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI.
Finally, a judge must review, consider and approve the application. All of these steps take time. Al Qaida, however, does not wait. . . . Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.
In the briefing on the new FISA process, however, the administration noted that one change that made compliance with FISA possible was a change in executive branch “infrastructure”:
[O]ne thing that did change was — authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will — be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.
One way to read this is that the new FISC order finds that new streamlined executive branch procedures for internal review of emergency applications accords with FISA. Its hard, unfortunately, to guess exactly what such procedures might be, but it almost certainly includes eliminating duplicative layers of legal oversight within the executive.
Filed under: Foreign Policy and National Security; General; Government and Politics; Law and Civil Liberties
Goodbye Warrantless NSA Surveillance?
The DOJ announced today it has reached a double super-secret deal with the FISA court which allows it to bring the administration’s NSA surveillance program within the statutory FISA framework governing surveillance warrants. What deal, you ask? The DOJ’s letter to Senators Leahy and Specter provides few details, except to say that it is based on a FISA court order that establishes “innovative” and “complex” warrant procedures that allow the administration to act with “speed and agility.”
Absent further information, its hard to tell whether this is a good development, although as Marty Lederman notes, it is “difficult to imagine that the FISA court would roll over and approve an ‘innovative’ legal theory if it were dubious — especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly.”
The administration’s about face underscores what I argued in this piece: that the administration’s claims that it was simply too cumbersome to comply with FISA held absolutely no water.
Lederman also notes that the threat of losses in ongoing multi-district litigation involving the state secrets privilege as well as the threat of congressional subpoenas, and possible litigation over executive privilege, may well have prompted the administration to give up its go it alone stance. I’ve previously argued that such threats had the potential to rein in the administration, without involving a winner-takes-all show down with the Supreme Court, here.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
Civil Liberty (Paid for by Philip Morris USA Inc.)
In a recent radio interview, Deputy Secretary of Defense for Detainee Affairs Cully Stimson threatened top American law firms that have done pro bono work for Guantanamo detainees. And, he suggested, Vito Corleone-style, that the corporations that bankroll these firms should think twice, if they know, eh-hem, what’s good for them:
“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
A chorus of criticism has followed, which President Reagan’s Solicitor General, Charles Fried, has now joined in today’s Wall Street Journal (available here). The money quote:
“It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony — one to savor, not deplore.
It is no surprise that firms like Wilmer Hale (which represents both Big Pharma and Tobacco Free Kids), Covington and Burling (which represents both Big Tobacco and Guantanamo detainees), and the other firms on Mr. Stimson’s hit list, are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”
As a big-firm alumnus, I might quibble a bit with Fried’s claim that big firm practice offers a “satisfying way of life”–but he’s absolutely right that the participation of corporate-funded defense firms on detainees’ behalf is something that’s particularly praiseworthy about the American legal system.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
The Final Version of My Latest Paper is Now on SSRN
The 99.6% final version of my latest law review article, Class Action Lawmaking: An Administrative Law Model, is now posted on SSRN (here). The article is forthcoming in the next edition of the Texas Review of Law and Politics. An early draft was posted some months ago, but it has been significantly revised in response to helpful comments at two faculty workshops. Here is the abstract:
This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.
I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they “adapt” statutes to “fit” the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of “distorting” the statute, assume courts have been delegated a great degree of such discretion.
The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a “starting-point” measure of Congress’s intent to delegate authority to “adapt” federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz’s suggestion that Chevron might be treated as a “constitutional starting-point rule” for defining permissible delegations of “dynamic interpretive power.”
My argument, however, is pragmatic rather than constitutional: in the absence of clear information about Congress’s desires in the class context, and in light of the complex trade-offs implicated by class actions, an off-the-rack approximation of Congress’s intent to delegate dynamic interpretive power to courts in the class context is needed. I suggest that Chevron is the best available “starting point” measure, in this pragmatic sense. In other words, pending further instruction from Congress, we might ask courts in the class context to start by “thinking about statutory interpretation and statutory discretion as they would want an agency to think.”
In the process, I show that the obvious objection to using Chevron in this fashion—that federal courts, unlike agencies, are not democratically accountable—doesn’t withstand close scrutiny. Put bluntly, courts interpreting statutes that affect the scope of their power to certify claims exempt themselves from the restraint they demand of agencies. Asking courts to consciously parallel the restraint they expect of agencies therefore reins in courts’ interpretive discretion—promoting, in the process, more democratic control over class action lawmaking.
Incidentally, I found Nicholas Quinn Rosenkranz’s article, Federal Rules of Statutory Interpretation, very helpful. You can access his paper, which I rely on in this latest draft and reference in the abstract, here.
Posner’s “Avatar” Talks Law
Seventh Circuit Judge Richard Posner’s “avatar” recently engaged in an online discussion in “Second Life,” a virtual online world. A transcript is now available at New World Notes here.
For those of you who aren’t familiar with Posner, he is perhaps the most influential, and certainly the most prolific, federal judge alive. For those of you who aren’t familiar with avatars or virtual worlds–and, to be quite honest, I fall in this camp, having only heard about this phenomenon secondhand (in Larry Lessig’s great book, Code and Other Laws of Cyberspace)–see these descriptions.
Here’s a taste of the sometimes surreal discussion (”JRP” is Posner, SL stands–I think–for “Second Life”):
Ludwig Swain: Copyright question: would you consider the “cloning” of a copyrighted real world architectural work into SL to be infringement or fair use?
Ben Solomon: No fair. That’s Bill Patry’s question…
JRP: I think Patry is in here somewhere– maybe he’s the raccoon.
Basman Kepler: I believe Patry has described his avatar as looking like Swiper the Fox from the Dora cartoons.
JRP: Great question on cloning a copyrighted real world architectural work into SL– probably infringement, on the theory that the SL counterpart is a derivative work, hence the property of the copyright holder. These are excellent questions!
Say what you will about Posner, he has a sense of humor.
Filed under: General; Law and Civil Liberties; Telecom, Internet & Information Policy
Brookings Panel on SCOTUS and Global Warming
On Monday, I participated in a panel discussion at the Brookings Institution on the Massachusetts v. EPA case. Other participants were Stuart Taylor; David Doniger of the Natural Resources Defense Council; David Sandalow of Brookings; science journalist Gregg Easterbrook; and environmental transaction lawyer Robert Reynolds (of Alston Bird). A transcript (uncorrected) of the discussion is available here. The discussion turned out to focus less on law, my particular expertise, than on environmental policy, but I found it worthwhile nonetheless. Note there is a discussion of Pat Michaels’ climatologist amicus brief for the EPA at the very end of the transcript, during the Q&A period: the “speakers” in the brief exchange over that brief are David Doniger and me.
Filed under: Energy and Environment; General; Law and Civil Liberties
Adler on Global Warming and SCOTUS
Jonathan Adler, the author of Cato’s amicus brief in the much-watched Massachusetts v. EPA case, which is being argued at the Court today, has an op-ed on the case in USA Today. Cato’s brief is here. My previous post on this case is here.
Filed under: Energy and Environment; General; Law and Civil Liberties
Judging Kyoto
Next Wednesday, the Supreme Court will hear oral argument in Massachusetts v. EPA, the blockbuster environmental case of the term. The issue: Does the Clean Air Act, a 1970s-vintage anti-smog statute, require the EPA to regulate greenhouse gas (CO2) emissions from new American cars? A number of states and enviro groups say “yes!” The EPA–in an exceedingly rare example of administrative self-restraint–says “no.” The stakes? Big: If the petitioners win, American carmakers may face the equivalent of Kyoto global warming standards, imposed by judicial fiat, despite Congress’s umpteen rejections of the Kyoto regime.
Cato filed an amicus brief on the EPA’s behalf, written by environmental law whiz Jonathan Adler and joined by lawprofs James Huffman and Andrew Morriss. Read it here. We argue that the petitioners lack standing to sue the EPA and also argue, for good measure, that nondelegation principles should counsel against creatively translating the Clean Air Act into a template for federal global warming regulation.
Cato’s intrepid Pat Michaels also filed a brief, joined by a number of other prominent climatologists, which tackles the dubious scientific claims of the environmental petitioners.
For more on the case, and its implications, Professor Adler recently participated in a panel discussion of the case at the American Enterprise Institute, which will be replayed on C-Span 2 tonight at 6 p.m. However, you can watch the archived video anytime here.
Filed under: Energy and Environment; General; Law and Civil Liberties; Regulatory Studies
Get Your Laws off My Body . . . of Constitutional Rights
One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights. Exhibit A: The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart.
The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart: ban partial birth abortion without providing any exception for the health of the mother. Why does Congress think it can tread where Nebraska couldn’t? Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health. The Solicitor General, in turn, contends that those findings deserve deference.
Now, I’m no fan of Roe or partial birth abortion. But the case is about more than abortion: If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.
The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving. Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military. Should that trigger a compelling interest exception to strict racial neutrality? Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40? Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?
If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.
This danger underscores one of the toxic costs of Roe: When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges. Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.
Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:
1. Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure.
2. Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.
3. Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter. Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.
By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny. By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs. (Of course, the Court could go even farther: by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)
The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban. Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny. And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.
Debate on the Virginia Marriage Amendment
For those following the debate over the Virginia Marriage Amendment, I’ll be discussing the implications of the amendment with Professor Nelson Lund at the George Mason University Law School on Wednesday, November 1, at noon. Details here.
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