Ninth Circuit re Stengel: Back to the (En) Banc

As we noted here, the Ninth Circuit Court of Appeals’ decision in Stengel v. Medtronic Inc. (676 F.3d 1159 (9th Cir. 2012)) left plaintiffs who sue the manufacturers of pre-market approved devices precious little in the way of potential state-law claims that are not expressly preempted by Riegel or impliedly preempted by Buckman. In fact, the majority of the three-judge panel recognized the exceedingly narrow window it had created by volunteering state-law manufacturing defect claims in response to plaintiffs’ anticipated complaint: “Are there any non-preempted state-law claims left?” It appears that the majority of non-recused active judges in the Ninth Circuit may find the Stengel opinion’s answer insufficient: On July 25th, it voted to rehear the case en banc, prohibiting citation to the original opinion in the meantime, per usual. --- F.3d ---, 2012 WL 3039710 (9th Cir. Jul. 25, 2012). The hearing will take place during the week of September 17th

Attorneys Fees Applications and Appeals: The Timing Effect

Federal Rule of Civil Procedure 54(a) allows a claim for attorney’s fees and other nontaxable costs to be made by motion in most cases. Such fees may be recoverable by statute or pursuant to a contract between the parties. In some cases, attorney’s fees are recoverable as a sanction for litigation misconduct. Consequently, fee motions play a prominent role in the post-trial practice.

Such fee motions raise a number of questions for the appellate process. We will explore some of these questions in a series of posts.

Does the fee application extend the time to appeal the judgment?

Generally, the answer is no. Rule 58(e) provides that a fee motion does not permit a delay in the entry of judgment or extend the time for perfecting appeal. Hence, litigants contemplating an appeal must file a timely notice of appeal even if a motion for fees remains pending in the district court. The district court does have the authority to order that the fee motion has the same effect upon the appellate timetable as a motion for new trial or to amend judgment under Rule 59, but such an extension is not automatic. A litigant who wants an extension must specifically request it and obtain an order from the court.

Sacred Exclusivity: The Ninth Circuit Steers (Well) Clear of the FDA

The Supreme Court’s opinion in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 349-50 (2001), recognizes that any attempt by a plaintiff to enforce the FDCA is preempted by federal law, because Congress entrusted all such enforcement efforts to the sole discretion of the FDA.  In 2010, the Ninth Circuit’s PhotoMedex opinion held that Buckman not only private attempts to enforce the FDCA, but also any attempt by a plaintiff to prove that a medical device manufacturer violated the FDCA because such an attempt would require the court to usurp or second-guess the FDA’s enforcement decisions – in the absence of a determination of such a violation by the FDA itself.  PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 928 (9th Cir. 2010).  Thus, PhotoMedex clearly suggested that Buckman would not prevent a plaintiff from proving an FDCA violation where the FDA had already determined that such a violation had occurred.

But the Ninth Circuit’s Stengel opinion, issued earlier this year, muddied the waters.  In Stengel v. Medtronic, Inc., 676 F.3d 1159 (9th Cir. 2012), plaintiffs sought to avoid Buckman preemption of their state law failure-to-warn claim premised on FDA regulations because there the FDA had already determined that the defendant had violated the FDCA.  Thus, the plaintiffs argued, the Court could safely find an FDCA violation without preempting or undermining the FDA’s enforcement authority.  The Ninth Circuit, however, rejected this argument, noting that Buckman was concerned not only with judicial second-guessing of the FDA’s determinations, but also with avoiding the “extraneous pull” that state-law claims would exert on the FDA’s Congressionally-mandated exclusive jurisdiction.  In short, the Stengel Court seemed to withdraw the “prior FDA decision” exception to Buckman preemption it had recognized in PhotoMedex only two years earlier.

The Ninth Circuit had a chance to revisit the scope of Buckman preemption in its recent Pom Wonderful opinion.  Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012).  Therein, the Court held that Pom Wonderful’s Lanham Act challenges to the naming and labeling of Coca-Cola’s “Pomegranate Blueberry Flavored Blend of 5 Juices” were preempted under PhotoMedex.  Interestingly, the Court’s characterization of PhotoMedex appeared to broaden its focus to accommodate the Stengel result by emphasizing PhotoMedex’s concern for “the authority Congress entrusted to the FDA” and “ the regulatory regime put in place by the FDA.”

This gloss on PhotoMedex allowed the Pom Wonderful Court to find preemption regardless of the presence or absence of FDA enforcement efforts (though it was careful to retain discretion to amend its view in future opinions depending on “the particular circumstances of the case”).  Thus, though Coca-Cola appeared to have complied with FDA regulations, it was not “mere compliance with the FDCA or with FDA regulations” that preempted Pom Wonderful’s claim.  Nor did it matter that the FDA had not undertaken any enforcement action against Coca-Cola.  What really mattered was that it was the FDA – not the civil courts – that was entitled to act or refrain in these areas, as it saw fit.  In other words, the Court rested preemption primarily on deference to the FDA’s exclusive authority, and resulting expertise, to regulate the matters entrusted to its oversight.  Indeed, the Court denied there was any room for civil litigation of the matters at all: “In the circumstances here, the appropriate forum for Pom’s complaints is the FDA.”

The reliance on PhotoMedex for complete abstention from litigation touching FDA-regulated matters is emblematic of the Court’s subtle expansion of that case’s import.  It is not a case about waiting for the FDA to make a determination before allowing the matters under its regulatory purview to be introduced into a civil claim.  Rather, “PhotoMedex teaches that [civil litigation] may not be used as a vehicle to usurp, preempt, or undermine FDA authority” and therefore “courts must generally prevent private parties from undermining, though private litigation, the FDA’s considered judgments.”  Thus is Stengel reconciled, not to the fact-specific inquiry in PhotoMedex, but rather to its overarching deference to the Congressionally-mandated exclusivity of the FDA’s purview.

Proof of Concept: Elgin and the Blogs

Last month, I joined a panel discussion on blogging during a PLI program on social media led by LexBlog's Kevin O'Keefe. I explained how important following blogs through an RSS Reader is to keeping up to speed in a world where information moves more quickly than ever.

I recalled that comment this week while thinking about the Supreme Court’s recent decision in Elgin v. Department of Treasury. Years ago, expert analysis of important new decisions would take weeks, if not months, to become widely available, largely through law reviews and journals. Today, busy lawyers have the benefit of the insights of lawyers and law professors around the country within days, sometimes hours. Elgin has sparked particularly interesting commentary about a range of difficult federal courts issues which has helped crystallize my reading of the opinions.

Elgin involved a group of Federal employees who were terminated for willfully failing to register with the Selective Service, as required by 5 U.S.C. § 3328. The Civil Service Reform Act (“CLRA”) establishes a comprehensive framework for reviewing adverse personnel actions taken against Federal employees: first, the case goes before the Merit Systems Protection Board (“MSPB”) for hearing, and the employee may then seek appellate review at the United States Court of Appeals for the Federal Circuit.

The employees sued in Federal district court, arguing that Section 3328 was unconstitutional as a Bill of Attainder and pursuant to equal protection (since women aren’t subject to Selective Service registration). This created two problems: a number of lower courts have held that the MSPB has exclusive jurisdiction over covered employment actions. But on the other hand, it seemed clear that the MSPB couldn’t adjudicate the constitutional claim because it can’t strike down statutes. So does the employee really have to first litigate his claims before a Board that has no power to decide them?

Elgin turns on a conflict between two related lines of authority. In Webster v. Doe, a covert CIA employee was terminated by the Director pursuant to Section 102(c) of the National Security Act after informing his security officer that he was gay. The Supreme Court held that although the broad language of the NSA was sufficient to bar judicial review on traditional administrative grounds, it was not sufficient to bar judicial consideration of constitutional challenges: “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.”

Only six years later, the Court decided Thunder Basin Coal Co. v. ReichThe Federal Mine Safety Act requires mine operators and miners to designate representatives to participate in regular safety inspections. The Secretary of Labor had broad authority to compel compliance, subject to review by the Mine Safety Commission, then by the appropriate Federal court of appeals. The miners designated two union employees as their representatives. The mine operator filed suit pre-enforcement, arguing that compelling it to first violate the Act and then challenge any penalties administratively violated its due process rights. Rather than applying Webster, the Supreme Court held that all that was necessary when Congress wished to merely delay, rather than preclude judicial review of constitutional claims, was that its intent be “fairly discernible.”

By a 6-3 vote, the Elgin Court held that Thunder Basin governed, and the district courts had no jurisdiction over petitioners’ constitutional claims. It made no difference that the MSPB had no jurisdiction to strike down the statute – the Federal Circuit did have such power once the case went up on appeal. Nor did it make any difference that the Federal Circuit, as an appellate court, was poorly suited to supervise any factual development that might be necessary to decide the constitutional issue; if the factual record was inadequate, the Circuit could remand the matter to the MSPB for discovery, and decide the claims when the case returned to it.

Join me below the jump for some thoughts about what it all means.

 

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Why Judicial Vacancies Matter, Part II

Last week, two long-standing judicial emergencies in the district courts ended with the Senate’s confirmation of Gregg Jeffrey Costa as a District Court Judge for the Southern District of Texas and David Campos Guaderrama as a District Court Judge for the Western District of Texas. Judge Costa’s seat had been vacant since June 11, 2010, and Judge Guaderrama’s since February 26, 2009. Nevertheless, judicial emergencies remain in effect with respect to thirty district court judgeships and seven Circuit Court judgeships.

These emergencies are not solely the result of a slow-moving nomination and confirmation process. Congress has failed for a generation to keep up with the fast-growing dockets in the Federal courts. In the district courts, the number of cases per judgeship increased 30% between 1993 and 2010 – from 407 cases per judgeship to 528.  In 1993, 264,038 cases were pending in the district courts; in 2010, 359,594 cases were pending. During that same period, Congress authorized 35 new permanent District Court judgeships – an increase of only 5.5 percent [pdf].

The Circuit Courts are stretched equally thin. In 1993, 48,474 cases were pending in the Circuits – an average of 290 per judgeship. In 2010, 56,790 cases were pending – an average of 340 per judgeship, and an increase of 17 percent. The number of new permanent Circuit judgeships authorized by Congress during that period? Zero [pdf].

Federal judges see the harm done by this crisis firsthand. “I have my own standards,” said Chief District Judge B. Lynn Winmill of the District of Idaho late last year, “but it’s getting very, very hard to meet my standards. I want to have my decisions out in 30 days. Historically, I’ve done OK – until last year.” “Civil litigation has ground to a halt,” said Chief Judge Michael McCuskey of the Central District of Illinois in a Wall Street Journal interview. “You’ve got a right to sue but you do not get a right to a speedy jury trial.” In 1997, Judge McCuskey’s district had 55 civil cases which had been pending more than three years. In 2010, that backlog had grown to 1,200. “Ultimately, I think people will lose faith in the rule of law,” Chief Judge Alex Kozinski of the Ninth Circuit told the Washington Post. “We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.” During a panel at the Brookings Institution, Judge W. Royal Furgeson voiced his frustration with his overcrowded criminal docket:

I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court . . . The problem, of course, in night traffic court is if my client got fined it was going to be a couple of hundred bucks at the most, and the problem I had with the defendants before me, they were looking at years – potentially years and years in a federal prison.

The four longest-standing judicial emergencies in the Circuit Courts are:

How Well Are Senate Confirmation Hearings Working?

Earlier this week, we discussed “advice and consent.”  Can Senators legitimately ask a Supreme Court nominee about a hot button issue and expect a direct answer? Do Senators have the right to vote up or down on a particular nominee for purely political reasons?

Now we turn from the question of what the confirmation process should be to the issue of how the process operates in practice. Is the widely held view that hearings have become a substance-free charade in the years since the Bork nomination supported by the evidence? What subjects are Senators asking about, and are white, male nominees treated differently from women and African-American nominees? Two timely studies attempt to shed some light on these questions.

Professors Dian Farganis and Justin Wedeking, of Elon University and the University of Kentucky, respectively, focus on how responsive nominees are to Senators’ questions in their study, No Hints, No Forecasts, No Previews: Analyzing Supreme Court Nominee Evasiveness, 1955-2009.  Farganis and Wedeking reviewed the transcripts of every Supreme Court confirmation hearing since 1955 (Justice John Harlan), coding the type of question asked, the responsiveness of the nominee’s answer, and the reasons given by the nominee for not answering more fully.

In general, the professors found that the popular model of nominees trying to avoid nearly all the Senators’ questions was not supported by the transcripts: they consistently ranked nominees’ answers as “very forthcoming” for between sixty and eighty percent of all questions.  They argue that the perception that hearings have become a multi-day exercise in nominees avoiding substantive responses is likely caused by two factors.

First, the professors found that the percentage of questions addressing nominees’ opinions and interpretations – especially of hot-button issues – has increased over time, and such viewpoint questions are more likely to be partially or fully evaded than factual questions.

Second, the researchers observed an increasing trend in recent years of nominees being more explicit about declining to answer a question, most often because they worry that a particular issue might come before the Court. This second trend is most famously illustrated by Justice Scalia’s reluctance to answer questions from Senators Strom Thurmond and Arlen Specter [pdf - pp. 33-34, 86]  during his 1986 confirmation hearing about whether he considered Marbury v. Madison to be settled law.

The second study, May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009comes from Professors Lori Ringhand and Paul Collins, of the University of Georgia Law School and the University of North Texas, respectively. Working from a database stretching back to the 1939 hearing for Justice Felix Frankfurter, Ringhand and Collins analyzed the topics addressed in the hearings. The results suggest that over the past seventy years, the hearings have had far more to do with politics and popular perceptions of the Court than they have with the Court’s actual day-to-day workload.

The biggest single group of substantive exchanges involved civil rights issues – race, gender and sexual orientation discrimination; freedom of speech and religion, and the right to privacy. Questions about nominees’ judicial philosophy occur less than half as often, and inquiries about statutory interpretation – what the Court spends much of its time doing – account for only about one percent of all exchanges. Interestingly, the study shows that Senators’ questioning of Judge Robert Bork was no more dominated by questions about his judicial philosophy than a number of other nominees’ hearings have been.

The researchers’ analysis of the impact of nominee race and gender on Senators’ examinations has received the most attention in the days since May It Please the Senate was posted, including from the New York Times the Volokh Conspiracy and PrawfsBlawg. According to the professors, minority candidates receive more questions about civil rights, judicial philosophy and criminal justice, and fewer about issues like federalism and statutory interpretation. Female nominees, on the other hand, receive fewer questions about civil rights, but more than men regarding judicial philosophy and federalism.

Both No Hints and May It Please the Senate are interesting reads, and important contributions to the study of politics’ impact on constitutional law. Many follow-up questions – some of which are mentioned in the studies themselves – suggest themselves for further research.

  • For example, Professors Ringhand and Collins break down their subject categories in the aggregate, arguing, for example that issues like abortion and the right to bear arms have not dominated the hearings; a similar breakdown along party lines might prove interesting.
     
  • Professors Farganis and Wedeking show that nominees’ evasiveness tends to increase in response to viewpoint questions, but it might be useful to analyze that data further by specific issues and sub-issues.
     
  • Both studies could throw additional light on the problems of twentieth and twenty-first century constitutional development by further analyzing their data with respect to the makeup of Congress at the time of each hearing, the party of the President, and the nature of the relationship between the Congress and the President.
     
  • Finally, it would be interesting to tie the professors’ results with respect to specific nominees back into the nominees’ performance on the Court, and the group dynamic of the Courts on which they served.

UPDATE: Professors Farganis and Wedeking have posted an update to their paper analyzing the responses given by Solicitor General Kagan to Senators' questions during her confirmation hearings.

Supreme Court: Removal-for-Good-Cause Provision in Sarbanes-Oxley Act Unconstitutional Restraint on President's Authority

The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board, an agency with broad authority to regulate accounting firms that perform audits of publicly-traded corporations. The Board is formally placed under the Security and Exchange Commission, but the Commission may only remove Board members pursuant to a stringent good cause requirement.

In Free Enterprise Fund v. Public Company Accounting Oversight Board (.pdf), the Supreme Court considered a challenge that the good cause removal provision violated separation of powers principles by creating a second level of employment protection for Board employees. (The majority opinion found that the SEC members themselves were removable only for good cause). The five-member majority, in an opinion authored by Chief Justice Roberts, held that the ability to remove inferior officers was an important part of the President’s power and obligation to ensure the faithful execution of the laws. The double layer of good cause protection for Board members effectively insulated them from presidential oversight, violating separation-of-powers principles.

Having won the battle, Petitioner then lost the war. The Court held that the invalid removal provisions were severable from the remaining provisions of Sarbanes-Oxley. Consequently, the Board action that Petitioner complained of was not invalid.

The dissenting opinion, authored by Justice Breyer, argued that the removal-for-good-cause provision was a valid exercise of legislative authority and that the majority’s ruling would call the authority of numerous other federal agencies into question.

So What Does "Advice and Consent" Mean Anyway?

Supreme Court confirmation hearings have come in for a lot of criticism in recent years. They’ve been called a “Kabuki Dance” and a process which has “take[n] on an air of vacuity and farce.”

Amid all the discussion of whether or not nominees have become more evasive recently – a subject we’ll address later in the week – an important question has gotten somewhat less attention in our ongoing national conversation. What does the Senate’s duty to give “advice and consent” mean anyway? Is a Senator entitled to ask a nominee about a hot-button issue – abortion, guns, the death penalty – and expect an answer? Is it legitimate for a Senator to vote against a nominee because of a perception that she’s too liberal or too conservative?

The “advice and consent” language arose out of a lengthy debate in the Constitutional Convention, the result of a compromise to a long-ending battle between those who wanted the Congress – or the Senate alone – to appoint judges, and other delegates who would have assigned that power exclusively to the President. Reviewing the evidence, it seems difficult to believe that a majority of the Convention supported a pro forma Senate role in confirming Supreme Court nominees.

Anyone arguing that the Senate should play only a deferential role faces an additional barrier. There’s considerable evidence that most seventeenth and eighteenth century rejections – including at least one, John Rutledge, by a Senate which counted several Founders among its members – were for political reasons.

The story begins with Edmund Randolph’s “Virginia Plan,” which proposed a “National Judiciary . . . to be chosen by the National Legislature.” A few days later, one of America’s first great lawyers, James Wilson, criticized the proposal for Congressional appointment, arguing that judges should be appointed exclusively by the Executive Branch. Benjamin Franklin suggested that the Convention might consider other methods of selecting judges, noting that in Scotland, lawyers picked the judiciary:

[T]he Lawyers . . . always selected the ablest of the profession in order to get rid of him, and share his practice (among themselves).

James Madison didn’t like either Congressional or Presidential appointment, and successfully moved to put the question aside for a while.

The following week, the Convention returned to the question. Madison argued that if the appointment power was given to the entire Congress, members would tend to appoint one of their own. He proposed that the Senate make the selection, and the Convention agreed.

In the days that followed, William Paterson of New Jersey proposed the “New Jersey Plan,” which would have allocated the power to appoint judges exclusively to the President, and Alexander Hamilton proposed a compromise – Presidential appointment, “subject to the approbation or rejection of the Senate.” But for the time being, the Convention held fast to the idea of appointments by the Senate.

There the matter rested for a month. In mid-July, Nathaniel Gorham of Massachusetts proposed a model rooted in his own state’s constitutional practice – appointment by the President, with the advice and consent of the Senate. Gorham almost immediately picked up an important ally – James Wilson, a prime proponent of Presidential appointment. Roger Sherman of Connecticut, a supporter of Congressional appointment, indicated that he might be willing to settle for advice-and-consent as well, but other delegates weren’t convinced. Ultimately, the whole matter was handed over to the Committee on Detail, which reported a draft in early August restoring Senate appointment.

By early September, there seems to have been some sentiment in the Convention for cutting back slightly on the Senate’s power. The Committee on Compromise presented its report, once more calling for Gorham’s plan – Presidential appointment, with the advice and consent of the Senate. James Wilson, who had earlier supported Gorham, back-tracked, arguing for Presidential appointment subject to the non-binding advice of a “Privy Council,” but Wilson’s proposal received little support, and the Committee on Compromise’s “advice and consent” appointments clause was adopted.

So if the Senate wasn’t intended to defer to the President’s choice, what is a reasonable test for a Senator to apply in deciding whether or not to support confirmation? Join us below the jump for the views of three prominent players in Solicitor General Kagan’s confirmation.

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High Court Sides With Hastings in Religious Student Organization Debate

Yesterday, a divided U.S. Supreme Court affirmed the University of California, Hastings College of the Law’s right to condition official recognition of a Christian student group on the organization’s agreement to open eligibility for membership and leadership to all students – including homosexual students. In an opinion on behalf of a narrow 5-4 majority, Justice Ginsburg concluded the law school’s policy – that a registered student organization (“RSO”) allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs – is a “reasonable, viewpoint-neutral condition on access to the student organization forum.” Justice Alito, who authored a vigorous dissent joined by the Chief Justice and Justices Scalia and Thomas, called the majority’s decision “a serious setback for freedom of expression in this country,” and characterized the ruling as a surrender to political correctness.

An initial and notable divide between the majority and the dissent is a disagreement over what law school policy was to be measured for constitutionality.  The law school maintains a published “non-discrimination policy” that prohibits student groups from “discriminate[ing] unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” But at the district court level, both the law school and the Christian student group, the Christian Legal Society (“CLS”), had stipulated to the following characterization of the Hastings policy under which it was denied recognition: “Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status.” Because of this stipulation, the constitutionality of this “all-comers policy,” as it was dubbed, was, according to the majority, the only question properly presented to the Court. The dissent rejected the assertion that the all-comers policy was merely an interpretation of the non-discrimination policy, and furthermore suggested that the law school’s all-comers policy was a pretext for discriminatory motives and litigation interests.

In its analysis, the majority first concluded that the limited-public-forum was the appropriate constitutional framework by which to measure the constitutionality of the all-comers policy.  The majority and Justice Stevens in a concurring opinion emphasized that the nature of the public forum at issue and the method by which Hastings influences it as warrants less than strict constitutional scrutiny. The majority stressed that “Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.” And Justice Stevens insists that it is appropriate for the law school to retain a measure of control over a “forum” it creates and funds: “[t]he RSO forum . . . is not an open commons that Hastings happens to maintain. It is a mechanism through which Hastings confers certain benefits and pursues certain aspects of its educational mission.”

Calling the all-comers policy “paradigmatically viewpoint neutral,” the majority distinguished the present case from precedents in Healy v. James 408 U.S. 169 (1972), Widmar v. Vincent, 454 U.S. 263(1981), and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), by saying that in those prior cases, “we ruled that student groups had been unconstitutionally singled out because of their points of view.” In considering the reasonableness of Hastings’ policy, “taking into account the RSO forum’s function and ‘all the surrounding circumstances,’” the Court noted its considerable deference to the school administration’s judgment regarding its educational policy. The Court characterized the all-comers policy as ensuring that “leadership, educational, and social opportunities” remained available to all students, that it served as an aid to Hastings in helping to police its non-discrimination policy, that it “encourage[d] tolerance, cooperation, and learning among students” and finally that it was consistent with existing State anti-discrimination laws. The dissent was not so quick to conclude that the all-comers policy was viewpoint neutral, and was further alarmed by the deference afforded by the majority to the law school’s justifications in defense of its policy, characterizing this deference as an abdication of the Court’s “responsibility to exercise [its] own judgment.”

The reasonableness of the policy was bolstered in the eyes of the majority by the “substantial alternative channels that remain open for CLS-student communication to take place.” In light of whatever viewpoint-neutral access barrier the all-comers policy presented, alternative avenues in electronic media – social networking sites, internet message groups, and Google – lessened the burden on CLS’ First Amendment rights. The dissent flatly rejected this argument, saying “[t]his Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad.”

Finally, both the majority and Justice Kennedy in a concurring opinion rejected the proposition that an all comers policy that required student groups to accept members holding viewpoints or beliefs contrary to that of the student group could lead to “hostile takeovers” of groups such as CLS by “saboteurs” who could “infiltrate groups to subvert their mission and message.” The majority called this supposition “more hypothetical than real,” pointing to the absence of evidence of “RSO hijacking” at Hastings. To combat such intrusions, the Court emphasized that RSOs were free to condition eligibility for membership and leadership on other factors such as attendance, payment of dues, and other neutral requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.”

While the dissenters hoped that the Court’s decision “turn[s] out to be an aberration,” the Court’s ruling is poised to have a profound effect on a school’s right to define and control its roster of student organizations, and will certainly dictate the outcomes of identical litigation brought by CLS now pending before several lower courts across the country.

Two More Circuits Affirm Antitrust Dismissals Against Government Entities

It’s been a busy summer at the Circuits for decisions applying the antitrust state action immunity. First up, as we reported three weeks ago, was the Ninth Circuit’s affirmance of the dismissal in Shames v. California Travel and Tourism Commission[pdf] in which the plaintiffs alleged the California Travel and Tourism Commission had colluded with the rental car industry to pass certain fees to customers. Now, hard on the heels of Shames, we have two more decisions: Danner Construction Co., Inc. v. Hillsborough County Florida [pdf] from the Eleventh Circuit, and Rectrix Aerodrome Centers, Inc. v. Barnstable Municipal Airport Commission [pdf] from the First.

In Danner, the Florida legislature had enacted a statute authorizing Hillsborough County to take “exclusive control” over solid waste disposal within its jurisdiction, and barring anyone other than the county or its franchisees from collecting or disposing of solid waste within the county. Acting under the statute, the county had passed an ordinance providing for awards of franchises for both residential and commercial waste collection. The County Commissioners set collection rates for residential service, but not for commercial service.

A disposal service and a commercial customer sued, arguing that both by restricting the commercial market and by setting below-market rates for residential service, the county’s ordinance essentially authorized price fixing in commercial service.

According to the Eleventh Circuit panel, antitrust claims against state entities are analyzed in two steps. First, the Court asks whether the statute or ordinance is preempted by the antitrust laws. If the answer is yes, the Court then applies the two part test for state action immunity set forth in Midcal to determine whether the challenged conduct is immune from antitrust liability.

The panel majority held that it was unnecessary to decide whether the statute and ordinance were preempted, because even if they were, the county’s conduct was immune under Midcal, since the county’s actions were a foreseeable result of a clearly expressed state policy.

The majority commented in dicta that state statutes can only be preempted when they purport to authorize per se violations of the antitrust laws – appearing to suggest that states can freely authorize rule of reason antitrust violations. The majority’s comment sparked a concurring opinion from Judge Beverly Martin. Judge Martin argued that when a plaintiff brought an “as applied,” rather than a facial challenge to a state action, the statute could be preempted under either per se or rule of reason analysis.

Last week, the First Circuit weighed in, affirming dismissal of antitrust claims in Rectrix. Massachusetts law requires any city or town that establishes an airport to also create an airport commission, which is empowered to lease land, acquire property, set charges and rentals, spend money, and make rules and regulations. Rectrix sued the Barnstable Municipal Airport Commission (BMAC), alleging that the BMAC had prevented it from competing with BMAC in the sale of jet fuel.

It might seem that a statute requiring cities and towns to create airport commissions with administer their airports falls far short of clearly articulating an intention to displace competition, but in fact, a number of Circuits have found state action immunity for similar airport authorities. The First Circuit followed this line of authority, as well as its own earlier decision interpreting the statute creating the Massachusetts Port Authority, Interface Group v. Mass. Port Authority, holding that the statute sufficiently authorized an exclusive dealing arrangement for sales of jet fuel at the airport. Since the plaintiff sued a government entity, rather than a private actor, the Court had no need to apply the second Midcal factor, which asks whether anticompetitive activity is actively supervised by the government.

Eleventh Circuit Expands Type of Evidence Used to Establish Amount In Controversy for Removal

The Eleventh Circuit, in Pretka v. Kolter City Plaza II, Inc. recently reexamined and rejected as dicta broad statements in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), that limit the type of evidence used to establish the amount in controversy for removal.

The plaintiffs in Pretka, buyers of units in a new high-rise condominium in Florida, filed a class-action suit against the developer, Kolter City Plaza II, Inc., for rescission of their contracts and return of their deposits because of construction delays. The complaint did not specify the amount in controversy, stating only that the case was an action for monetary damages in excess of $15,000 (the jurisdictional requirement in Florida state courts). Kolter removed the case to the Southern District of Florida under the Class Action Fairness Act (CAFA), stating in the notice of removal that the $5 million amount-in-controversy requirement was met because the company had collected purchase deposits for units at the condominium totaling in excess of $5 million. Kolter attached to its notice a sworn declaration to this effect by the chief financial officer of Kolter’s parent company.

The plaintiffs filed a motion to remand, arguing that the Eleventh Circuit’s decision in Lowery required the district court to ignore the declaration because it was not a document received from the plaintiff.  Kolter filed an opposition to remand, submitting additional evidence, including the first three pages of every unnamed plaintiff’s contract whose deposit Kolter had not returned, and a sworn declaration from the contract and closing manager for Kolter’s parent company attesting that she had personally reviewed all of the contracts and financial records for purchase deposits and they totaled $41,183,226.08. At a hearing, the plaintiffs, relying on Lowery, argued that the district court was limited to the “four corners” of the documents the plaintiffs had provided to the defendants, and insisted that the two declarations and the contracts were “extraneous.”

The district court, relying on Lowery, remanded the case, ruling that Kolter had failed to prove by a preponderance of evidence that the amount in controversy exceeded $5 million. The court read Lowery as (1) barring consideration of the declarations and the unnamed plaintiffs’ contracts because none of them was “a document received by Defendant from Plaintiffs”; (2) requiring it to reject Kolter’s “impermissible speculation” on the “potential damage claim of putative class members, as opposed to named plaintiffs”; and (3) barring consideration of the second declaration and the unnamed plaintiffs’ contracts because Kolter did not submit them with its notice of removal.

The Eleventh Circuit reversed in a 72-page decision thoroughly examining the statements in Lowery that led to this result, and clarifying the law on evidence used to establish the amount in controversy. First the court distinguished Lowery because the record in Lowery “contained only ‘naked pleadings’—no specific factual details, no discovery, no affidavits or declarations, no testimony, no interrogatories and no exhibits other than the complaints.” Slip op. at 17. The court sought to clear up any misunderstanding of Lowery:

We stated in Lowery that “[t]he absence of factual allegations . . . is dispositive and, in such absence, the existence of jurisdiction should not be divined by looking to the stars.” But Lowery did not say . . . that the use of deduction, inference, or other extrapolation of the amount in controversy is impermissible, as some district courts have thought. . . . [W]hen a removing defendant makes specific factual allegations establishing jurisdiction and can support them . . . with evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations[,]   [t]hat kind of reasoning is not akin to conjecture, speculation, or star gazing.

The court also pointed out that in Lowery the defendant removed under the second paragraph of 28 U.S.C. § 1446(b), which provides that “[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . ,” whereas Kolter was relying on the first paragraph of § 1446(b), because Kolter filed its notice of removal within thirty days of being served with the summons and initial complaint. The court explained that while, in a “second paragraph” case the traditional rule is that only a voluntary act by the plaintiff may convert a non-removable case into a removable one, and an initially non-removable case cannot be converted into a removable one by evidence from the defendant, that rule (the “receipt from the plaintiff” rule) has no application to cases removed under the first paragraph of § 1446(b). 

The court rejected as unpersuasive dicta two statements in Lowery: that the “receipt from the plaintiff” rule is not limited to removals made under the second paragraph of § 1446(b) but also applies to first paragraph removals, and that the “receipt from the plaintiff” rule would apply to any case in which the complaint sought unliquidated damages. The court concluded that in Pretka, which arose under the first paragraph of § 1446(b), the evidence Kolter could use to establish the jurisdictional facts was not limited to what it received from the plaintiff, and that the district court erred in rejecting the declaration submitted with the notice of removal and the post-removal evidence—the contracts and the second declaration. With this evidence the defendants were able to establish the amount in controversy by a preponderance of the evidence, and the court instructed the district court to rescind the order remanding the case.

Does It Matter If Your Antitrust Judge Has Been Trained in Economics?

It's no secret to those of us who've been defending antitrust cases for a number of years that economic expert witnesses are a more important part of the defense team than ever before. Triers of fact often must evaluate complex economic analyses of the competitive effect of sophisticated business strategies. According to Judge Richard Posner of the Seventh Circuit -- an antitrust expert -- the task facing the average judge or juror is overwhelming:

Econometrics is such a difficult subject that it is unrealistic to expect the average judge or juror to be able to understand all the criticisms of an econometric study, no matter how skillful the econometrician is in explaining the study to a lay audience.

So what effect does economic complexity have on the likelihood that an antitrust case will be appealed? Is the judge's decision more likely not to be appealed -- or to be affirmed if it is appealed -- if the judge has at least basic training in antitrust economics? Until recently, there was no empirical evidence on these important questions.

Two antitrust scholars, Professor Joshua Wright and Professor Michael Baye, have filled that gap in an important new study, Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appealswhich will appear in an upcoming issue of the Journal of Law & EconomicsProfessor Wright is an Assistant Professor of Law at George Mason University’s School of Law, and Professor Baye holds professorships in Business, and in Business Economics and Public Policy at Indiana University's Kelley School of Business. The professors' study has been discussed in Core Economics, the Antitrust and Competition Policy BlogLegal Theory Blog, and most recently, Business Wire.  Professor Wright has been blogging the study for some time as it came together on his antitrust blog, Truth on the Market, herehere, and here.

The study is more than worth a complete read, but here's a summary. The professors collected every published decision involving the merits of an antitrust claim between 1996 and 2006 -- 714 decisions, including both district judges and administrative law judges. The researchers coded the cases by type of claim, as well as collecting data on the education and experience of the judges involved. Next, the professors searched for certain terms in the decisions in order to separate cases involving factually complex economic testimony from factually simpler cases. Finally, the study identified judges who had attended basic economic training classes at the George Mason University Law and Economics Center.

Professors Wright and Baye concluded that in cases not involving complex econometric data, the decisions of judges who had attended economic training programs were significantly less likely to be appealed, and less likely -- when they were appealed -- to be reversed. Interestingly, previous experience deciding antitrust cases was not an adequate substitute for economics training when it came to improving judicial decision-making. Responding to criticism that economics education programs for judges were biased towards politically conservative, free-market based economic theories, the researchers concluded that "trained" judges' decisions performed equally well whether the judge was a Democratic or Republican President's nominee.

Like most good research, the study suggests a number of follow-up questions – join me below the jump to see what some of those are.

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Ninth Circuit Tosses Antitrust Claim Against State Agency Accused of Price-Fixing

Can a government agency conspire to fix prices? When it comes to the California Travel and Tourism Commission, the Ninth Circuit says the answer is "no." Shames v. California Travel and Tourism Commission [pdf].

The CTTC consists of a dozen commissioners appointed by the Governor, and two dozen selected by the tourism industry. In 2006, the passenger rental car industry proposed a bill by which the industry agreed to pay a high assessment fee -- thereby considerably increasing the CTTC's budget -- in return for allowing the rental car industry to "unbundle" a tourism assessment fee and concession fee and itemize such fees separately from the base rental rate. According to plaintiffs' complaint, the CTTC colluded with the industry to pass these charges through to retail customers.

The district court held that "state action immunity" barred the complaint, and the Ninth Circuit affirmed.

In California Retail Liquor Dealers Association v. Midcal Aluminum, the Supreme Court held that private actors were immune from antitrust liability when two factors were satisfied: (1) the challenged restraint was clearly articulated and affirmatively expressed as state policy; and (2) the policy was "actively supervised" by the state.

On appeal in Shames, the plaintiffs argued that the first factor required that specific anticompetitive acts be expressly authorized by state legislation. The Ninth Circuit disagreed, holding that the first factor was satisfied where the anticompetitive actions were reasonably foreseeable in view of a broader statutory authorization, a standard easily satisfied by the 2006 CTTC legislation.

Citing both the Supreme Court's and its own precedent, the Court held that because there is little likelihood that a governmental agency would enter into a private price-fixing arrangement, there is no need for the state to actively supervise the agency's conduct for state action immunity to apply. The Court found that although two-thirds of the CTTC's commissioners are appointed by the tourism industry rather than by the government, the Commission was sufficiently similar to a government agency for the second factor to be inapplicable.

ALI Resumes Work on Restatement (Third) of Torts: Economic Torts

During this morning's special session at the American Law Institute's Annual Meeting, Director Lance Liebman has announced that work is resuming on the Restatement (Third) of Torts: Economic Torts and Related Wrongs with Reporter Professor Ward Farnsworth. 

A few more details about the Institute's new project on insurance law have also become available.  Principles of Liability Insurance Law is expected to consist of three chapters: Principles of Contract Law in the Liability insurance Context, Principles of Liability Coverage, and Principles of Management of Insured Liabilities.

Finally, the Institute is in the earliest stages of "Principles of Government Ethics," which aspires to reflect the current state of this emerging area, as well as perhaps proposing a Model Statute.

Former Solicitor General Waxman Endorses Kagan Nomination

Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to the reargument in Citizens United, the Court's decision striking down Federal limits on certain forms of corporate-financed electioneering, and being impressed with her brilliance.

Although many observers have suggested that Kagan's lack of judicial experience is a concern, Waxman noted that many of our greatest Supreme Court Justices came to the Court without appellate judging experience, including Robert Jackson, John Marshall Harlan and Earl Warren. Waxman argued that it was important for the Court to have members with the professional experience of learning from a broad cross-section of the country:

Elena Kagan's experience, although not judicial, will serve the country well.

Waxman also paid tribute to John Paul Stevens, the retiring Justice Kagan may replace. Describing Justice Stevens as a "consummate common law judge," Waxman said that arguing a case before him was both "a rare pleasure and a genuine terror." During his years on the Court, Waxman said that Justice Stevens has been an advocate of "judicial modesty," both substantive -- deference to the political branches, and reluctance to use the power to strike down statutes on constitutional grounds -- and procedural -- a cautious approach to choosing the questions the Court answers, and a strong preference for acting on the narrowest possible grounds.   According to former Solicitor General Waxman, judicial modesty "serves the structural balance that's essential to representative democracy."

On Monday, we reported on the remarks of Justice Stephen Breyer during the opening day of the ALI's meeting. Video of Justice Breyer's remarks is now available on the ALI's website, along with video from several additional speakers.

Justice Stephen Breyer Addresses the American Law Institute

Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer's suggestion, rather than making an address, he responded to questions from several ALI members.

ALI Director Lance Liebman asked how the Court's role as the final arbiter of so many crucial questions is compatible with democratic values. Justice Breyer responded that Alexander Hamilton's original answer from The Federalist had never been improved upon. Unless somebody enforces the Constitution, it becomes a dead letter. The power can't be given to the President, since that would be too much power. As a politically elected body, Congress can't be expected to pass judgment on their own statutes. Someone has to enforce the Constitution "when it's unpopular to do it," Justice Breyer said; anyone can do it when it's popular.

Justice Breyer was asked whether statutory and constitutional originalism, with its emphasis on text, history and precedent, was the more democratically legitimate approach for the Court to take to its work.  Justice Breyer disagreed with the view that there are no controls inherent in looking to purpose and consequence when it's appropriate which will prevent a judge from relying upon his or her subjective views.  In fact, if a judge is prepared to be honest, there are just as many checks and controls in an approach that incorporates purpose and consequence as in strict originalism.  The basic values and purposes stay the same, Justice Breyer said; it is the details as to how those values and purposes apply in a changing world that differ.

Solicitor General Elena Kagan Nominated for Supreme Court

This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee:

Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government.

The President praised Kagan’s “fair-mindedness and skill as a consensus-builder,” and noted that during her time as Solicitor General, “she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.”

In her remarks, Kagan called the Supreme Court “an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law, and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”

She also spoke of her passion for the law:

Because law matters; because it keeps us safe; because it protects our most fundamental rights and freedoms; and because it is the foundation of our democracy.

The full text of President Obama’s and Solicitor General Kagan’s remarks are available at the White House website.

Reactions to the Kagan nomination are beginning to come in from the Senate, including three members of the Senate Judiciary Committee: Chairman Patrick LeahySenator Amy Klobuchar and Senator Orrin Hatch, as well as Senate Republican Leader Mitch McConnell.

Supreme Court Short List Down to One?

CBS News is reporting that President Obama will announce his nominee to replace retiring Supreme Court Justice John Paul Stevens on Monday morning.

In the weeks since Justice Stevens announced his retirement, the Appellate Strategist has profiled each of the short list candidates:

Solicitor General Elena Kagan

Judge Diane Wood of the U.S. Circuit Court of Appeals for the Seventh Circuit

Judge Merrick Garland of the U.S. Circuit Court of Appeals for the D.C. Circuit

Judge Sidney Thomas of the U.S. Circuit Court of Appeals for the Ninth Circuit

Justice Carlos Moreno of the California Supreme Court

Secretary Janet Napolitano of the Department of Homeland Security

Judge Kim McLane Wardlaw of the U.S. Circuit Court of Appeals for the Ninth Circuit

Leah Ward Sears, former Chief Justice of the Georgia Supreme Court

Supreme Court Short List Profiles: Judge Merrick Garland of the D.C. Circuit

Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Garland’s credentials are impeccable.  An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of the Second Circuit and U.S. Supreme Court Justice, William Brennan.  He served as Special Assistant to the Attorney General of the United States from 1979 to 1981.  He then entered private practice with Arnold & Porter in Washington D.C.  In 1989 he returned to the Justice Department as an Assistant U.S. Attorney for the District of Columbia.  After three years, he returned to Arnold & Porter but in 1993 he returned once more to public service when he was appointed Deputy Assistant Attorney General in charge of the Criminal Division.  In this role he supervised a number of high profile cases such as the Oklahoma City bombing and the Unabomber case. It has been noted that Judge Garland’s background is very similar to that of Chief Justice Roberts.

President Clinton appointed Judge Garland to the D.C. Circuit in 1995.  His appointment was held up for political reasons.  Republican senators, then in the majority, had no issues with Judge Garland’s qualifications or judicial philosophy, but argued that the D.C. Circuit did not need additional judges in light of its case load.  Judge Garland was finally confirmed in 1997.

Judge Garland is widely recognized as an expert on antitrust and, particularly, administrative law.  Interestingly, in the 1980s Garland was involved in an academic debate over Cass Sunstein, currently Administrator of the White House Office of Information and Regulatory Affairs, and a person frequently mentioned as a potential Supreme Court candidate.  The subject of the debate was the scope and purpose of judicial review of administrative agencies.  Generally, Sunstein favored a “hard look” approach to agency decisions, scrutinizing them to assure that they had considered the interests of all relevant stakeholders.  Garland, by contrast, urged that the focus of review should not be so much upon representation but upon ensuring fidelity to the language and purpose of Congress. Other writings urge that the states be free to make policy choices and that federal regulations, particularly economic ones, should not preempt them.

The case load of the D.C. Circuit is atypical, with much of its business coming from the regulatory agencies.  Join us below the jump for a review of some of Judge Garland’s notable decisions.

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Supreme Court Short List Profiles: Judge Diane Wood of the 7th Circuit Court of Appeals

In the days following Justice John Paul Stevens’ announcement in April that he would step down from the Supreme Court, the speculative “short list” of candidates to replace him steadily lengthened. But one name that was mentioned almost immediately was Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit.

At age 59, Judge Wood presently sits on the Seventh Circuit Court of Appeals (nominated by President Clinton in 1995) and is a senior lecturer at the University of Chicago School of Law (where President Obama previously taught). She had been a top candidate for Justice Souter’s prior vacancy, and interviewed with President Obama before the position ultimately went to Judge (now Justice) Sotomayor.

Judge Wood graduated with high honors and Order of the Coif from the University of Texas School of Law in 1975. She clerked for Justice Harry Blackmun in 1976. If nominated and confirmed to the High Court, she would be the only seated Justice who did not attend Harvard or Yale law school.

Judge Wood is an expert on antitrust and trade law, and has authored several books and articles on those subjects. She has also written numerous articles on the topic of individual liberty, including a comprehensive review of Justice Blackmun’s constitutional jurisprudence on individual liberty and “the right to be let alone.”

  • "Justice Blackmun and Individual Rights.” 97 Dickinson Law Review 421 (1993).
     
  • “Sex Discrimination in Life and Law.” 1999 University of Chicago Legal Forum 1 (1999).
     
  • “The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Howard Law Journal 747 (2008).
     
  • “Katrina and the Rule of Law in the Time of Crisis: Natural Disasters and the Rule of Law in the Time of Crisis: The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Harvard Law Journal 747 (2008) (Wiley A. Branton/Howard Law Journal Symposium).
     
  • “The Rule of Law in Times of Stress.” 70 University of Chicago Law Review 455 (2003).
     
  • “Our 18th Century Constitution in the 21st Century World.” 80 New York University Law Review 1079 (2005).

Join us below the jump for some of Judge Wood's notable opinions:

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Supreme Court Short List Profiles: Janet Napolitano, Secretary of Homeland Security

Our series of profiles of possible Supreme Court nominees to replace the retiring Justice John Paul Stevens continues with the Secretary of Homeland Security, Janet Napolitano.

After finishing at the top of her class at Santa Clara University -- earning a Truman Scholarship and graduating summa cum laude with Phi Beta Kappa honors -- Napolitano attended the University of Virginia Law School. After clerking for Ninth Circuit Judge Mary Schroeder, Napolitano began ten years in private practice in Phoenix. While in private practice, Napolitano was part of the team representing Anita Hill in connection with her testimony at Justice Clarence Thomas' confirmation hearings. She also participated in the briefing in Air Line Pilots Ass'n v. O'Neill499 US 65 (1991), which involved the standards applicable to determining whether a union has breached its duty of fair representation.

Napolitano's public career began in 1993, when President Clinton appointed her United States Attorney for Arizona. During her five years in that position, she prosecuted over 6,000 immigration cases and made cross-border crime a priority. Napolitano also led the investigation of Michael Fortier in connection with the Oklahoma City bombing.

She was elected state Attorney General in 1998. During her four years in that position, she focused on consumer protection. A defender of the death penalty, Napolitano argued Ring v. Arizona, 536 US 584 (2002), where the Supreme Court held that permitting judges to determine the facts necessary to qualify a defendant for the death penalty violated the Sixth Amendment.

In 2002, Napolitano was narrowly elected Governor. In her first month, Napolitano proposed a budget eliminating a $1 billion budget surplus without tax increases. During her two terms, Napolitano:

  • Focused on immigration issues, ordering the National Guard to the Mexican border and significantly toughening sanctions on employers for hiring undocumented workers;
     
  • Promoted a prescription drug plan and improved care in long-term living facilities for seniors;
     
  • Championed education reform, including voluntary full-day kindergarten programs; and
     
  • Reformed the state's Child Protective Services.

When Napolitano proposed giving a children's book to every first-grader in Arizona, rather than funding the program through the state budget, she spent three years raising nearly a half-million dollars in private funds to make the program possible.

In 2005, Time named Napolitano one of America's Five Best Governors.  A year later, Napolitano was named by the White House Project as one of the eight women most likely to become the first female President.  Napolitano served as Chair of the National Governors Association from 2006 to 2007.  She was confirmed as the first woman Secretary of Homeland Security in January 2009. Secretary Napolitano's experience as a prosecutor and government official, dealing with the practical impact of the law on everyday lives, places her among the President's potential Supreme Court nominees from outside the realms of the Federal appellate courts and academia.

Attorneys Beware: Mistakes of Law in Debt Collection May Subject You to Statutory Liability

An April 21 decision of the US. Supreme Court is must reading for attorneys who collect debts.  Making a legal mistake can subject the attorney and the firm to liability under the Fair Debt Collection Practices Act.

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (.pdf), the law firm filed a complaint in state court.  The complaint contained a statement that the mortgage debt in question would be assumed valid unless the debtor disputed the debt in writing. When debtor’s attorney showed that the debt had been paid the original lawsuit was dropped.  Debtor then sued the firm and one of its attorneys for violating the FDCPA, alleging that the statement in the complaint that the debt must be disputed in writing was false.

The district court found that the complaint had, indeed, violated the Act but that the defendants were entitled to summary judgment on their statutory “bona fide error” defense under 15 U.S.C. 1692k(c). This provision allows a defendant to escape liability by showing that the violation was not intentional,  but resulted from a good faith error occurring despite the maintenance of reasonable procedures.

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Supreme Court Short List Profiles: Former Georgia Chief Justice Leah Ward Sears

We continue our profiles of short-listed potential nominees with Leah Ward Sears, former Chief Justice of the Georgia Supreme Court.

Justice Sears was born in 1955 in Heidelberg, Germany, where her father served as a colonel in the Army.  Her family later settled in Savannah, Georgia, and she attended high school there.  She received her bachelor’s degree from Cornell University, J.D. from Emory University School of Law, and, later, an LLM from the University of Virginia Law School in 1995.  After graduating from law school she joined the Atlanta law firm of Alston & Bird. 

Five years later Atlanta Mayor Andrew Young appointed Sears to Atlanta’s City Traffic Court, and three years after that, in 1988, she was elected to the Superior Court of Fulton County, Georgia – the first African-American woman to hold this position in Georgia.  In 1992 Georgia governor Zell Miller appointed her to Georgia’s Supreme Court.  She was the first woman and the youngest judge (36) to sit on that court.  She became Chief Justice in 2005 and retired from the court in 2009 when her term as Chief Justice ended.  She is now with the law firm of Schiff Hardin, LLP, in Atlanta. 

Justice Sears was among those considered last year to replace Justice David Souter.

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Supreme Court Short List Profiles: Judge Sidney Thomas of the 9th Circuit Court of Appeals

Appellate Strategist’s continuing series of profiles of “short list” candidates to replace the retiring Justice John Paul Stevens continues with Judge Sidney Thomas of the 9th Circuit Court of Appeals.  Judge Thomas is notable for his relatively conventional professional path, and his geographic and educational roots.  Where many of the current Justices arrived at the Court from the East Coast, Judge Thomas hails from Billings, Montana.  Many Justices had backgrounds in public service before assuming the bench, but Judge Thomas toiled as a private litigator representing a diverse array of commercial interests before the Montana Supreme Court and the federal appellate courts.  And, if he joins the Court, he’d be the only non-Ivy Leaguer among the justices.

Judge Thomas was born in 1953 in Bozeman, Montana, and graduated from Montana State in 1975.  He went directly to law school at the University of Montana, graduating in 1978.  In private practice, he represented mineral rights interests in cases ranging from inverse condemnation to the validity of oil and gas leases, as well as employers in wrongful discharge cases, newspapers in defamation cases, and a national broadcast network in a constitutional challenge to a Montana statute.

While in private practice, Judge Thomas supported the campaign of Senator Max Baucus, D- Mont., who later recommended him for the 9th Circuit.  President Clinton nominated Judge Thomas, who was confirmed by the Senate without controversy in January, 1996.

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Supreme Court Short List Profiles: Solicitor General Elena Kagan

Since the days of Robert Bork, it has happened, sooner or later, to every Supreme Court nominee: the uncomfortable moment when a Senator quotes one of the nominee’s writings back to him or her, smiles across the Committee table, and says: “Explain that.”

If Solicitor General Elena Kagan is nominated to replace Justice John Paul Stevens on the Supreme Court next month, as observers like Tom Goldstein of SCOTUSBlog and Jeffrey Toobin of the New Yorker expect, here’s the quote she’ll be hearing:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

Kagan wrote that in a 1995 book review for the University of Chicago Law Review. During her 2009 confirmation hearings, she addressed the issue this way: “I am also less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested. Yet that leaves the question just what these hearings should be about – what matters Senators should explore with the nominee and how the nominee should be evaluated. I confess to finding these questions very difficult.”

Kagan’s professional background is described in detail in the Background Questionnaire she completed for the Judiciary Committee in 2009. A native New Yorker, she received her undergraduate degree from Princeton and a Masters from Oxford. After graduating from Harvard Law School in 1986, she clerked for Judge Abner Mikva on the D.C. Circuit, and then for Thurgood Marshall at the U.S. Supreme Court. Between 1989 and 1991, Kagan was a junior associate at Williams & Connolly in Washington, handling a mix of commercial, First Amendment and white-collar criminal litigation.

Since that time, Kagan’s career has shuttled between academia and public service. She joined the faculty at the University of Chicago Law School in 1991, but left temporarily to serve at the request of now-Vice President Biden as Special Counsel to the Senate Judiciary Committee during the confirmation hearings for Justice Ginsburg in 1993. 

In 1995, she interrupted her academic career again to serve as Associate Counsel to the President, and later as Deputy Assistant to the President for Domestic Policy. After leaving the White House in 1999, she was a Visiting Professor at Harvard Law School, becoming a resident Professor in 2001 and Dean of the Law School in 2003. Kagan was nominated and confirmed as the first woman to serve as Solicitor General in 2009.

General Kagan’s Tenure as Solicitor General. Since Justice Stevens announced his retirement, there’s been considerable public discussion of Kagan as a potential nominee. Columnist Glenn Greenwald has expressed concerns about her substantive views, former Solicitor General Walter Dellinger and Tom Goldstein of SCOTUSBlog have defended her, and Greenwald has responded.

Although these columns have been largely concerned with policy, Kagan’s performance as Solicitor General has come in for some criticism as well. Writers in both Salon and the New York Times have been critical of Kagan’s tenure, and other columnists have quoted from, and linked to, those articles. However, these criticisms do not stand up to close analysis.

Join us below to jump to see why.

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Supreme Court Expresses Perplexity During Hastings Argument

“What do I do with this case?” asked Justice Breyer in the final minutes of oral argument Monday morning in Christian Legal Society v. Martinez [pdf].

Justice Breyer’s question underscored the apparent confusion regarding what exactly was being challenged in the Christian Legal Society’s case against Hastings College of the Law. Despite the acknowledged importance of the constitutional question – whether and to what extent a public school may require officially recognized student groups to adhere to a non-discrimination policy even if that policy conflicts with a religious organization’s religious beliefs – this confusion may actually discourage the Court from answering the issue directly, in favor of remanding to the lower courts in order to develop a clear factual record.

When argument commenced, the Court almost immediately sought to identify just what it was being asked to decide. 

  • Was it the constitutionality of the “written policy” (the school’s  non-discrimination policy) or
     
  • The “all-comers policy” (the condition that a registered student organization’s bylaws must provide that its membership is open to all students”)?
     
  • Justice Scalia postulated that “the all-comers policy [is] broader than the non-discrimination policy, so that if you comply with that, you automatically comply with everything in the non-discrimination clause.” CLS counsel, Stanford Law Professor Michael McConnell, argued that both are unconstitutional.

Moreover, were the policies being enforced evenly by Hastings on all student groups, or just against CLS?  Justice Kennedy noted the parties did not agree on what case was before the Court. Counsel for Hastings, Gregory Garre, agreed that if the factual record showed the policy was not evenly applied to all groups, the policy would be unconstitutional. Kennedy appeared to concur: “It’s a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Club.” But given the newly emergent disagreement regarding the facts – i.e. whether the law school’s policies and requirements for registered student organizations were in fact being applied even-handedly – Justice Kennedy stated his concern that “it’s frustrating for us not to know what kind of case we have in front of us.”

Justice Breyer expressed perhaps the strongest frustration, saying: “I have an absolute void in this record, which in turn I think would be important to fill.” He continued: “where I feel I need more facts and I don’t have them . . . what should I do?” Even Mr. Garre conceded the presence of a new dispute: “This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.” 

Nevertheless, the Court pressed on, attempting to reach the core constitutional question. And a large part of questioning was directed at what could be labeled the “take over problem”: the CLS’s objection to “being run by non-Christians” if it were forced to allow enrollment of members and officers who do not share the group’s core beliefs.  

At one point, Justice Alito asked Hastings’ counsel: “suppose at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?” Mr. Garre parried, saying “this example has never happened at Hastings in 20 years.” 

Garre insisted that “[g]roups can take measures to prevent [such a ‘takeover’].” But Chief Justice Roberts and Justice Alito pressed Garre. Justice Alito demanded to know what recourse an organization would have if such a “hostile takeover” were to actually take place. Garre suggested that “the members would rejoin and form another group,” to which Justice Alito quipped: “if hostile members take over, former members of CLS can form CLS2?” drawing laughter from the gallery.

In contrast, Justice Ginsburg had earlier pointed out that “all the hypotheticals about sabotage, takeover, they haven’t happened.” Justice Kennedy expressed a similar pragmatic view: “Why doesn’t this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them. What . . . doesn’t this all just work out?” This viewpoint would put these two Justices at odds with Chief Justice Roberts and Justice Alito, who seemed unwilling to resolve the issue by resorting to the conclusion that the feared “take over situation” is unrealistic.

Regarding what type of membership discrimination would be permissible, each advocate tried to draw a distinction. Faced with questions about whether a student organization could exclude members because of their race or gender, counsel for CLS distinguished between discrimination based on a potential member’s “status” and discrimination based on a potential member’s “belief” in the organization’s tenets. Mr. McConnell argued that an organization may permissibly condition membership on the latter, but not on the former.

And Hastings’ counsel conceded that an organization may permissibly create “merit” requirements for membership and officer positions within the organization, such as “pass[ing] a test on the Bible” if such a test “were truly an objective knowledge test.” To which the Chief Justice countered: “I assume there are groups that think subscribing to their beliefs is evidence of merit, particularly religious groups. So how can you have a test that allows distinctions based on merit but not beliefs?” At one point the law school seemingly pled the position that by adopting its non-discrimination policies it was merely taking a position of ultimate neutrality: “Hastings isn’t in the business of second-guessing the beliefs of individual groups.” 

Reading the proverbial tea leaves is always an exercise in speculation. Justices Scalia and Alito, along with the Chief Justice, appeared more sympathetic to CLS’ position, while Justices Ginsburg, Sotomayor, and Kennedy appeared to favor the arguments of Hastings. Both Breyer and Kennedy expressed dissatisfaction with the state of the record and confusion about just what issue was before the Court.  This case may turn out to be a tempest in a teapot.

Supreme Court Finds Common Ground in Free Speech Case: Law Prohibiting Depictions of Animal Cruelty Ruled Overbroad

In an 8-1 decision (.pdf), the United States Supreme Court struck down recently enacted 18 U.S.C. 48  which forbids the distribution of images depicting cruelty to animals. 

In United States v. Stevens, the defendant had been convicted of distributing videotapes of pit bulls attacking other animals.  Chief Justice Roberts, writing for the majority, held that the statute went too far.  Its language, which among other things, bans depictions of the unlawful killing or wounding of animals, could be used to prosecute persons distributing depictions of activities such as hunting that were lawful and even encouraged where they occurred but illegal in places (like the District of Columbia) that did not permit hunting.  Although the statute contained an exception for materials with “serious” educational or religious value, the exception did not adequately save the statute as a whole from overbreadth.

Justice Alito was the lone dissenter.  He accepted the government’s argument that the statute reached only depictions of sadistic activity.

It is encouraging that, despite ideological difference, the Supreme Court can achieve consensus on a constitutional issue.  Hopefully, Congress will learn the lessons of the Stevens opinion and craft an animal-cruelty law that is more precisely focused.

Supreme Court Short List Profiles: Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals

As part of Appellate Strategist's ongoing evaluation of the “short list” of potential nominees to replace retiring Justice Stevens, we turn now to one of the nominees who was also on the short list to replace Justice Souter – Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals.

Judge Wardlaw is a California native, born in 1954 in San Francisco. She earned her undergraduate and law degrees at UCLA, graduating from law school in 1979. She clerked for the Hon. William P. Gray, U.S. District Court, Central District of California for two years, then worked in private practice as a litigator in Los Angeles from 1980-1995. Wardlaw worked on the Clinton-Gore Presidential Transition Team with the U.S. Department of Justice in 1992-1993, and later on the Mayoral Transition Committee for Los Angeles Mayor-elect Richard Riordan in 1993.

Wardlaw was nominated to the U.S. District Court, Central District of California, by President Clinton in 1995, and to the U.S. Court of Appeals for the Ninth Circuit in 1998. Both her confirmations were quick and unanimous. Such a history of bipartisan support might bode well for a future nomination.

Judge Wardlaw is often described as a moderate liberal or centrist, who would give the court greater diversity as the third female justice and the second Latina. She would also be the only non-Ivy League justice and offer extensive experience as a private litigator.

Join us below the jump for a review of notable Ninth Circuit opinions authored by Judge Wardlaw:

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Supreme Court Short List Profiles: Justice Carlos Moreno of the California Supreme Court

Appellate Strategist has posted several times in the last week about names being discussed as possible nominees to replace retiring Justice John Paul Stevens. But a list of names, however important, says little about the nominees. We therefore begin our series of short profiles of those whose names top the list. We begin with Carlos Moreno, an Associate Justice of the California Supreme Court.

The recipient of a B.A. in political science from Yale University (1970) and a 1975 J.D. from Stanford Law School, Carlos Moreno served in the Los Angeles City Attorney's Office, prosecuting criminal and civil consumer protection cases. In 1979, he joined a private firm, representing clients in general commercial litigation. He has a solid background as a trial judge, having served on the Los Angeles Superior Court and the U.S. District Court of Appeal, Central District of California. He was appointed to the California Supreme Court in 2001.

Moreno’s standing as a legal scholar is beyond dispute. He has a well-deserved reputation for integrity that cuts across ideological boundaries, and a good judicial temperament, though he has been known to politely but firmly challenge attorneys who make bald statements about legal propositions, often asking “what’s your authority for that, counsel?” (That is not a criticism, by the way.) He construes statutes as they are written, even if he disagrees with the underlying policy, subscribing to the (sometimes novel) view that that is a jurist’s job. His substantive specialties include criminal cases and arbitration.

Join us below the jump for a sampling of recent opinions he has authored.

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Will Justice Stevens' Retirement Make A Difference In The Supreme Court's Approach To Punitive Damages?

Justice John Paul Stevens has been tagged by many as a “liberal.” Appellate Strategist does not propose to debate that general proposition here. Rather, it’s time to begin assessing what effect his absence might have on the growing body of Supreme Court jurisprudence that has been cutting back, a little at a time, on the blockbuster punitive damages awards that so commonly make the headlines. Or at least used to make the headlines.

Here are a few thought-provoking tidbits concerning his role in the development of this important body of law: 

  • Justice Stevens pioneered the recent punitive damages jurisprudence, authoring two of the Court’s first forays into the constitutionality of the award amounts. The first was the “granddaddy” of them all, BMW, which blazed the trail. (BMW of No. Amer. v. Gore (1996) 517 U.S. 559.)  After that came Cooper, which created an unprecedented de novo standard of review of punitive awards for constitutional excessiveness. Appellate courts were no longer constrained by the trial judges’ decision re the propriety/excessiveness of the amount. Cooper gave courts of appeal a free hand to bring the excessive “outlier” verdicts into line. (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424.)
     
  • He joined in the Campbell majority opinion, the behemoth that expanded the defendant’s constitutional rights beyond a mere review for excessiveness of the amount. (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408.)
     
  • He dissented in Williams. He still believed that due process imposes both substantive and procedural constraints on State power to impose punitive damages, but Williams presented a different issue. The majority held the State may not punish the defendant with punitive damages for harming other victims who were not plaintiffs and not before the jury. (Philip Morris USA v. Williams (2007) 549 U.S. 346.) Justice Stevens saw “no reason why an interest in punishing a wrongdoer ‛for harming persons who are not before the court,’ should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.” (Citation omitted.)
     
  • We discount the Court’s most recent decision, Exxon Shipping Co. v. Baker (2008) 128 S.Ct. 2605, which presented unique issues of punitive damages under federal maritime law, and anyway, there are so many separate opinions and joinders, it would take a computer program to keep the justices’ various positions straight.

These cases have revolutionized the law of punitive damages, helped level the once-tilted playing field, and afforded them relief – in the form of reduced awards – awards that a few years ago were often rubberstamped on appeal as within the jury’s discretion. Countless billions – literally – “billions” with a “b” – have been saved thanks to these legal developments. He clearly made an important contribution.

Now the burning question is: where will the successor stand? In a series of future posts, Appellate Strategist will try to explore that question, and perhaps even offer some answers.

The Supreme Court Short List Is Expanding

As Appellate Strategist reported a week ago, when Justice John Paul Stevens announced his retirement, most Supreme Court observers believed that the "short list" contained three names: Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland. But even as the White House is suggesting that a nominee will be named in early May, it appears that the "short list" is growing longer.

CNN reports that Judge Sidney Thomas of the Ninth Circuit is under consideration as a possible nominee.  Judge Thomas was in private practice in his native Montana before he was nominated to the Ninth Circuit by President Clinton. He has served on the Ninth Circuit since 1996.

According to ABC News, Leah Ward Sears, former Chief Justice of the Georgia Supreme Court,  is on the President's short list as well. Justice Sears was appointed to the Georgia Supreme Court in 1992, and was sworn in as Chief Justice in 2005.  She retired from the court in 2009, and is now in private practice.

The Boston Globe is reporting that Professor Martha Minow, the Dean of Harvard Law School, is another possible nominee. Professor Minow has written extensively on human rights law.  She has taught at Harvard Law School since 1981.

Two New Candidates for SCOTUS Nomination Emerge

According to the San Francisco Chronicle, two new candidates have emerged as possible Supreme Court nominees to replace retiring Justice John Paul Stevens. 

Justice Carlos Moreno of the California Supreme Court began his career as a deputy city attorney in Los Angeles.  Justice Moreno received his first two judicial nominations from Republican Governors George Deukmejian and Pete Wilson. In 1998, he was appointed to the United States District Court by President Clinton. In 2001, he was appointed to the California Supreme Court by Democratic Governor Gray Davis.

Judge Kim McLane Wardlaw of the Ninth Circuit was in private practice until 1995. She was appointed to the United States District Court by President Clinton in 1995, and elevated to the Ninth Circuit in 1998.

Replacing Justice Stevens By the First Monday in October

President Obama made a statement this afternoon, suggesting that he would nominate a replacement for retiring Justice John Paul Stevens within "weeks." In describing his ideal nominee, the President suggested that he would be looking for someone who agreed with Stevens' spirited dissent in Citizens United v. FEC:

I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.  It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. 

Senator Patrick Leahy, the chair of the Senate Judiciary Committee, said today that he expected to have hearings on the President's Supreme Court nominee this summer.  Meanwhile, Newsweek is reporting that Secretary of Homeland Security Janet Napolitano is on the short list for the vacancy, along with Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland.

Reaction to Stevens' announcement continues in Washington.  Vice President Joseph Biden issued a statement.  Tony Mauro at The Legal Times has the statements of the other Justices, plus retired Justices O'Connor and Souter. The Ninth Justice, the National Journal's new blog on the Supreme Court vacancy, has reactions from many more Senators.

Supreme Court Justice John Paul Stevens To Retire This Summer

The New York Times and CNN are reporting that Justice John Paul Stevens will retire when the Court reaches the end of its term in June.  The Appellate Strategist will post further information on the story as President Obama's search for a successor shifts into high gear.

UPDATE: The Supreme Court has posted a copy of Justice Stevens' retirement letter [pdf].  As Douglas Berman points out over at Sentencing Law and Policy, Justice Stevens has increased pressure on the Senate to confirm a replacement quickly by making his retirement effective when the Court rises for the summer, not when his replacement is confirmed and sworn in.  Tony Mauro at The Legal Times  has reactions from members of the Senate and Chief Justice Roberts' statement.

The Short List For a Supreme Court Vacancy

Within the past several weeks, Supreme Court Justice John Paul Stevens has dropped several hints that he might be about to announce his retirement.   Even though nothing’s definite yet, the news media and the legal blogs are busy speculating about possible replacements. Here’s the roundup – both the “short list” and some of the long shots:

According to The Washington Post’s blog, The Swamp, Jess Bravin of The Wall Street Journal  and Mark Sherman at The Associated Press, there are only three names on the list:

  • Solicitor General Elena Kagan, the former Dean of Harvard Law School,  who has served as Solicitor General since 2009;
     
  • Judge Diane Wood of the Seventh Circuit.  Before her appointment, Judge Wood was Deputy Assistant Attorney General in the Antitrust Division of the Justice Department; and
     
  • Judge Merrick Garland of the D.C. Circuit. Judge Garland was Principal Associate Deputy Attorney General under President Clinton before his elevation to the Court of Appeals.

Kevin Rudin of National Public Radio lists General Kagan and Judges Wood and Garland as the front-runners, but suggests two intriguing possibilities:

Tom Goldstein of SCOTUSBlog writes that there is only one real candidate: General Kagan. Nevertheless, he handicaps a number of additional possibilities in addition to Judges Wood and Garland and Governor Granholm:

  • Secretary of State Hillary Clinton;
     
  • Professor Cass R. Sunstein, who is Felix Frankfurter Professor of Law at Harvard, and currently serves as Administrator of the Office of Management and Budget Office of Information and Regulatory Affairs;
     
  • Attorney General Eric Holder;
     
  • Governor Deval Patrick of Massachusetts. Governor Patrick served as Assistant Attorney General for the Civil Rights Division in the Clinton Justice Department. From 2000 through 2004, he was General Counsel and Executive Vice President of Coca-Cola; and
     
  • Senator Amy Klobuchar of Minnesota.  Senator Klobuchar served as a county prosecutor for several years and later was in private practice.

At the New York Times, Peter Baker lists a number of these candidates and adds four new ones:

  • Professor Harold Koh, former Dean of Yale Law School, where he specialized in international law, and now the Legal Adviser to the State Department;
     
  • Professor Pamela S. Karlan of Stanford, who specializes in voting rights and the political process;
     
  • Senator Richard Durbin of Illinois, who was both in private practice for a number of years before his election to Congress in 1983; and
     
  • Senator Claire McCaskill of Missouri, who was a long-time local prosecutor before her election as state Auditor.

Finally, Law 360 interviewed appellate specialists from leading firms around the country, asking them to complete this sentence: “If I were Obama, My Supreme Court Pick Would Be . . ."

The results were interesting and – with the exception of General Kagan’s six votes – showed little overlap with the list of candidates discussed above. Aside from Professor Kathleen Sullivan of Stanford Law School, an authority on constitutional law who was prominently mentioned last year when Justice Souter retired, the only new candidate receiving more than one nomination was the person I suggested:

"In nominating a successor to Justice John Paul Stevens, President Obama should seek not only a brilliant lawyer, but someone who would bring a breadth of real-world experience to a Court which today consists of nine former judges from the Federal Circuits.  Through most of the twentieth century, Supreme Court nominees were frequently drawn from outside the Federal appellate courts, including Congress, the Cabinet and the private bar.  President Obama should revive that tradition by nominating Senator Sheldon Whitehouse of Rhode Island.

Over the next decade, the Supreme Court will likely face a range of important issues in criminal law, including Federal sentencing, the death penalty, habeas corpus and issues arising from the Government’s anti-terrorism efforts.  Senator Whitehouse would bring an important perspective to these issues, having served as both a United States Attorney and as his state’s Attorney General before his election to the Senate, as well as serving on the Judiciary Committee and the Select Committee on Intelligence in the Senate.

In addition, the Court will certainly be asked over the next several years to define the parameters of its recent landmark cases impacting both the legislative and political process, such as Heller v. District of Columbia and Citizens United v. FEC.  Having served in both the state and Federal government, Senator Whitehouse would bring a deep understanding of those worlds, far removed from the judiciary, to the Court’s debates.

In his four years in the Senate, Senator Whitehouse has demonstrated not only that he has a keen legal mind, but has shown himself to be an incisive, aggressive investigator in Senate committee rooms.  Two of the finest twentieth-century Justices -- Hugo Black and Earl Warren -- held political office before joining the Court.  President Obama should elevate another: Senator Sheldon Whitehouse."

U.S. Supreme Court Adopts Nerve Center Test for Corporate Citizenship in Diversity

A corporation's citizenship for purposes of Federal diversity jurisdiction is governed by 28 U.S.C. 1332(c)(1): a corporation is a citizen of the state of its incorporation, and the state where its principal place of business is found. This morning, in a decision certain to have a major impact on the day-to-day functioning of the Federal courts -- and attorneys' analysis of whether removal is available in a particular case -- a unanimous Supreme Court adopted a bright-line test for determining a corporation's "principal place of business." Friend v. Hertz Corporation, [pdf] No. 08-1107.

Until today, the circuits had been badly split on the proper test under Section 1332(c)(1). The Ninth Circuit -- which decided Friend -- applied a "place of operations" test, ignoring the corporate headquarters and considering where a company's plants, employees, retail locations and assets are located. Since California is the most populous state in the nation, the Court's test has meant, in practice, that national retailers -- even corporations strongly identified with other states -- are routinely deemed California citizens, making it impossible for many corporations sued in California state courts to seek removal to Federal court.

In contrast, the Third Circuit applied the "center of corporate activities" test, looking to the place where the corporation's day-to-day activity and management is centered. The Seventh Circuit applied the "nerve center" test, asking merely where the "brain" of the corporation is located. Finally, the Fifth, Sixth, Eighth, Tenth and Eleventh Circuits applied a "totality of the circumstances" test, considering the character, business purpose, nerve center, management center and general operations of the corporation. As the Supreme Court noted, Moore's Federal Practice treatise devotes fourteen pages to describing the circuits' various tests.

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