Results tagged “Supreme Court”

January 6, 2014

benadlin_sj.jpgBy Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal

Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.

One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.

Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."

It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."

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August 5, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

I don’t get it.  There are certainly circumstances where the line between contributions and expenditures is fuzzy (and circumstances where the line has been confused even when it is clear).  But McCutcheon presents such a scenario only if we forget entirely why the constitutional distinction arose.

The paradigmatic expenditure is the sum that I spend to produce a political communication in my own voice.  If I want to make and place a 30-second TV spot supporting candidate John Smith, the money that I spend is an expenditure.  My ability to communicate my own political message (and to persuade others to adopt the same position) is at the core of the values that the First Amendment protects.  Thus, limits on that ability receive the most heightened scrutiny.

The paradigmatic contribution is the sum that I donate to a candidate, to spend on campaigning as she pleases.  She may use that money to create speech I agree with.  She may use that money to hire staff or buy chairs.  She may give that money away to another candidate, whom I don’t support at all.  If the recipient of my donation produces speech at all, it is derivative: I give to the candidate to further her speech (some of which I probably agree with).  And the gift is one way to demonstrate my wish to be associated with the candidate, but there are many, many ways to demonstrate that association effectively that do not involve giving money to the candidate herself.  That is, there are First Amendment values involved, but they are more attenuated.  Thus, limits on these contributions receive less rigorous scrutiny.

Note that the reason for different levels of scrutiny relies on the different values expressed, rather than the difference between giving money and spending money.  With the latter, it’s too easy to get lost.  Someone may give money to a video producer to spend on making a video (which is really just giving money to actors and camera operators and film editors and the like).  Someone may give money to a political group to spend on donations to candidates, or to spend on making videos themselves.  As Bauer points out, a candidate may give to his own campaign to spend on getting elected.  In any world with more than two people, there will be both giving and spending behind any transaction.

But that’s not what the constitutional distinction between expenditures and contributions is based on.  Instead, it’s about the First Amendment values expressed.  If I (alone or with others) spend money to advance my message, that’s an expenditure.  If I give money to someone else to advance their purposes, message-related or otherwise, that’s a contribution.

Giving to groups that are only producing ads (an “expenditure-only PAC”) shows that the distinction can become tricky.  The less I know what the PAC is actually doing, the more it looks like a contribution.  The more engaged I am in the message of the PAC, the more my gift to them looks like an expenditure -- my action, taken in connection with others, to express our collective message.  In the SpeechNow case, the D.C. Circuit found that it did not need to decide whether such gifts are contributions or expenditures for purposes of constitutional scrutiny; even contribution limits must be justified by some valid government interest, and the court found none.  The holding saved resolution of an admittedly tricky question.

Coordinated expenditures can also be tricky.  Formally, the expenditure is my speech.  But it would also be possible for me to serve as the empty funding vessel for a message of a candidate’s choosing, which is not so different from giving the candidate the money directly.  And it may be that the tricky distinctions are unnecessary to resolve here as well, in the mirror image of SpeechNow: even rigorous scrutiny of limits on coordinated expenditures may reveal valid regulatory interests that justify restrictions less defensible in a truly independent context.

So there are, to be sure, tricky cases in the land between contributions and expenditures.  McCutcheon, however, is not one of them.  Aggregate limits on “the total amount that a contributor can spend on contributions” are still limits on my ability to give money that lands in the hands of candidates or parties, to do with as they please.  I have no control over whether the money is used to produce a message I agree with, a message I disagree with, or a donation to a candidate that I firmly wish to be defeated.  The First Amendment values of my gifts are attenuated.  (And that’s true whether or not the government has a sufficiently valid regulatory interest.)

If contributions and expenditures are defined by giving and spending, the aggregate limits in McCutcheon might seem tricky.  But if we return to the reasons behind the constitutional distinction itself, at least that element of McCutcheon looks refreshingly straightforward.

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June 27, 2013

By Associate Clinical Professor Jessica Levinson Jessica Levinson Summary Judgments Blog.jpg

This op-ed was originally published by Pacific Standard Magazine

In a much-anticipated case decided Tuesday, the Supreme Court concluded that Section 4 of the Voting Rights Act, a landmark civil rights law originally enacted a half century ago to reverse the rampant disenfranchisement of Southern blacks, is unconstitutional. The VRA itself is not dead, but a key section of it is undoubtedly on life support. And while a 5-4 court majority wielded the weapon, know that Congress' inaction gave the court an excuse to take it up.

If you've been following the saga of pre-clearance, you may have expected to read that Section 5--not Section 4--was declared invalid. Section 5, after all, has gotten most of the press. Allow me to explain.


Congress passed the VRA in 1965 in response to pervasive discrimination against African American voters. This landmark piece of legislation contains two key provisions.

The first is Section 2, which provides a general prohibition against any voting procedure or practice that discriminates on the basis of race, color, or membership in certain language minority groups. Section 2 was not at issue in Shelby County v. Holder but likely will begin to bear a much heavier weight thanks to the Supreme Court declaring Section 4 invalid.

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June 26, 2013

By Associate Professor Justin Levitt Levitt2.jpg

This commentary was cross-posted from SCOTUS blog.

The Court today struck down a statute that did not exist. And it did so at the request of jurisdictions seeking a little extra "dignity" -- who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b -- Section 4 of the Voting Rights Act, and a central part of the Act's preclearance regime. Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power. Section 5 sets the "what." Section 4 sets the "where," delineating which jurisdictions receive Section 5′s special medicine.

But the Section 4 that the Court struck is a curious creature -- as I'd feared, a simulacrum. The Court branded it the rote reenactment of a "formula based on 40-year-old facts having no logical relation to the present day."

This stale formula is not the coverage formula actually in the law. The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination. But it did not end there. It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to "bail out" of coverage.

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June 26, 2013

By Associate Professor Justin Levitt Levitt2.jpg

This information was cross-posted from Election Law Blog.

DOMA has been struck down as unconstitutional. Prop 8 case from California dismissed on standing grounds (initiative proponents have no cognizable injury distinct from the general population). I haven't yet read thoroughly, but SCOTUSblog reports that neither finds a constitutional right to same-sex marriage.

DOMA decision is here; Prop 8 is here.

Both 5-4, very different majorities. DOMA is Kennedy, Ginsburg, Breyer, Kagan, Sotomayor; Prop 8 is Roberts, Scalia, Ginsburg, Breyer, Kagan.

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June 25, 2013

By Associate Professor Justin Levitt Levitt2.jpg

These posts originally appeared on the Election Law Blog

Reactions to Shelby County: Spencer Overton

I'll be expecting several comments today on Shelby County from academics who write in the field. Spencer Overton kicks it off:

The preclearance provision of the Voting Rights Act required that all or part of 15 states submit their election changes to federal officials for approval. Today, five members of the Court ruled that the Section 4 coverage formula of the Voting Rights Act is unconstitutional and can no longer be used to require that areas preclear their election rules with federal officials. The Court invalidated the coverage formula because the Justices believed the formula was based on outdated election data from the 1960s and 1970s.

Today's Supreme Court decision is a setback for democracy.

Unfortunately, today's decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk. There is overwhelming evidence that unfair voting rules remain a very real threat--too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

His thoughts continue here.

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June 21, 2013

By Associate Clinical Professor Jessica Levinson Jessica Levinson Summary Judgments Blog.jpg

This op-ed was originally posted on Jurist.

To answer the question in the title: not so much. Monday came and went without a "blockbuster" decision by the US Supreme Court. However, the Court did hand down one important, and likely to be overlooked, decision regarding a hotly debated topic: proving of citizenship for purposes of registering to vote.

In Arizona v. Inter Tribal Council of Arizona [PDF], Justice Scalia, writing for a 7-2 majority of the Court, found that federal law preempted Arizona's voter registration requirements. This sounds like a victory of voting rights activists, but let's delve deeper.

In 1993 Congress passed the National Voter Registration Act (NVRA). The NRVA requires that when States register voters for federal elections they "accept and use" a federal form. With respect to proof of citizenship, the so-called "Federal Form" requires that would-be voters profess that they are citizens. This claim is made under penalty of perjury.

The NVRA provides that states must allow voters to register to vote for Federal candidates with a driver's license application, in person, or by mail. The third method, registering to vote by mail, is at issue in this case. But Arizona law requires more. The state passed a law, via the initiative process, requiring that applicants must present documentary evidence of citizenship. If applicants do not, then state officials must reject the voter registration application.

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June 18, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This commentary was cross-posted to Election Law @ Moritz.

June arrived with two election law cases at the Supreme Court. One is still pending: a highly anticipated decision on section 5 of the Voting Rights Act. The other, more frequently overlooked, was decided yesterday. And there are some quirks of the opinion that seem to depart from the swiftly congealing conventional wisdom that the states might actually have "won," and now need only run out the clock.

The case is called Arizona v. Inter Tribal Council of Arizona, Inc., but it has bounced through the courts under various names for seven years. In 2004, Arizona voters passed Prop 200, increasing identification requirements at the polls (one valid photo ID or two non-photo documents with name and current address) and requiring new voters to submit documentary proof of citizenship with a voter registration form.

There are policy reasons to question the merits of laws like these, whose costs can be larger than their benefits. Americans do not emerge from the womb with paperwork stamped on their skin, and as our Medicaid experience demonstrates, there are real individuals born in the country who do not have documentation of their citizenship readily available; the burdens on those people have to be assessed against the minimal fraud that such requirements incrementally deter, over and above prosecution and deportation. (Incidentally, it's not unusual for popular initiatives to disproportionately burden a minority of residents; that's a problem I've called to the Court's attention in the also-still-pending Prop 8 case.) But today's decision had little to do with those policy questions, or on the constitutional limits of that cost-benefit assessment.

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May 9, 2013

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

This post originally appeared on KCET's website.

Is candidate centered campaign fundraising a thing of the past?

Greetings, and welcome to the Super PAC era. Thanks in part to the Supreme Court's 2010 decision in Citizens United, we now have new entities called "Super PACs," which are organizations that can raise and spend unlimited political funds.

Contributions given directly to candidates are unlimited, but again, contributions to outside groups such as Super PACs are not. Therefore, as many predicted, individuals and entities who wish to support candidates but have given up to the legal limit, now have a new outlet for their campaign donations. This pattern, however, is nothing new. Before there were Super PACs big donors gave to political parties or other outside organizations like independent expenditure groups.

Campaign fundraising by candidates is increasingly being marginalized and fundraising by independent groups including Super PACs is coming to the forefront. We are seeing this phenomenon play out real time in the Los Angeles mayoral race where the contribution limit to candidates is $1,300 both in the primary and the runoff elections. While fundraising by candidates is still outpacing fundraising by Super PACs in the mayoral race, at some point in the near future that could change. In this election both candidates have raised approximately $5.7 million and independent groups have raised roughly $4.7 million for Greuel and $1.3 million for Garcetti. That means about one-third of the money raised in the mayor campaign has been raised by outside organizations. Again, the lion's share has gone to groups supporting Greuel.

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April 24, 2013

By Associate Visiting Clinical Professor Lara Bazelon

In the Supreme Court case of Metrish v. Lancaster, the state appeals the finding of the Sixth Circuit's grant of habeas relief to Burt Lancaster (no relation to the actor), who was twice tried and found guilty for the murder of his girlfriend. In the first trial, Lancaster raised both insanity and diminished capacity defenses. The jury rejected both, but because of an unrelated constitutional error, the conviction was set aside.

At the second trial, Lancaster again sought to raise the insanity defense. In the interim, however, the Michigan Supreme Court abolished the defense. That decision was applied to Lancaster retroactively. Lancaster was once again convicted and sentenced to life in prison.

After exhausting his state court appeals, Lancaster filed a writ of habeas corpus in federal court. Lancaster lost in the district court, but prevailed before a divided panel of Sixth Circuit judges, which granted the writ after finding that Lancaster's due process rights were violated.

To find in Lancaster's favor, the panel had to clear two exceptionally high hurdles erected by the United States Supreme Court's retroactivity and habeas jurisprudence. On the retroactivity front, the court of appeals had to find that the Michigan courts' abolition of the diminished capacity defense was "unexpected and indefensible." On the habeas front, the bar was even higher: the Sixth Circuit had to find that the Michigan courts' decision to apply retroactively to Lancaster its "unexpected and indefensible" decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" among reasonable jurists.

You may be wondering exactly what kind of habeas petitioner could possibly prevail under either standard, much less both. I'm not sure I know the answer, but I'm pretty sure it isn't Lancaster.

The dissenting judge on the Sixth Circuit panel laid bare the shaky foundations of her colleagues' opinion. Simply put, the majority could not overcome a standard of review so highly deferential that it allowed federal judges to grant relief to state court petitioners only in cases of "extreme malfunctions in the states' criminal justice systems."

My take: This dissent, coupled with SCOTUS' decision to grant cert, signals swift reversal.

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March 4, 2013

Lapp_SJ.jpgBy Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

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February 25, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This op-ed originally appeared on Jurist.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

And sometimes, the cases -- like the Supreme Court's decision last week to hear McCutcheon v. FEC -- are drawn from the exams.

In May 2011, I asked the following question on my election law exam:

Federal law imposes aggregate limits on individual campaign contributions over a two-year period. Individuals may not contribute more than $46,200 (total) to federal candidates, with no more than $2,500 to any single candidate. (These limits pertain to contributions to federal candidates only, and do not include separate limits on the aggregate amounts that individuals may give to PACs and political parties.)

Clark Tuckerberg is a social media entrepreneur and multi-billionaire. He has "friended" more than 200 members of Congress and more than 30 US Senators on Facebook -- and he would like to demonstrate that, to him, "friending" is a real commitment. He acknowledges that he may not give more than $2,500 to any single candidate. However, he would like to give $2,500 to each of the candidates that he has "friended," which would put him well over the aggregate limit.

Tuckerberg files suit, challenging the aggregate $46,200 limit on contributions to federal candidates, under the First Amendment. He does not challenge either the $2,500 limit on contributions to any individual candidate or any limits on contributions to parties or PACs.

You are clerking for the judge assigned to hear the case.

The judge acknowledges that the Supreme Court addressed the issue of aggregate contribution limits in six short sentences of Buckley v. Valeo. Yet with a twinkle in her eye, she suggests that the Court's recent stance toward campaign finance precedent suggests that it may be unwise to rely solely on six cursory sentences of a thirty-year-old opinion. She cautions that she has no view on whether the limit is constitutional or not. But she would like you to analyze the issue as an original matter, without relying on the cursory treatment of the issue in Buckley.

Evaluate whether Tuckerberg's challenge to the aggregate $46,200 contribution limit is likely to succeed, and why. On August 31, 2012, real-live Virginia James stepped into the shoes of my entirely fictional Clark Tuckerberg. In her complaint, captioned as James v. FEC, she challenged the same aggregate contribution limit that Tuckerberg resented.

On Halloween last year, the US District Court for the District of Columbia rejected James' challenge, in an opinion with far more meat than the limited treatment that the issue received in Buckley. The court's opinion turned largely on the role of the aggregate limit in stemming corruption arising out of candidates' transfers to each other. That same issue was at the heart of a companion case, McCutcheon v. FEC, challenging the aggregate limit on giving not only to candidates, but also to political action committees (PACs) and parties; McCutcheon was filed two months before James and was decided -- upholding the limit -- at the end of September.

Under an unusual procedure largely reserved at this point for election-related cases, McCutcheon was heard by a three-judge federal trial court, the decisions of which are appealed directly to the Supreme Court. This appeal is an appeal by right, not a request for certiorari: the decision can be summarily affirmed or summarily reversed, or the court may hear argument and write more extensively. But, much like my students, the Court cannot chose to avoid the issue entirely.

On Tuesday, the Court agreed to hear more from the parties on McCutcheon, which likely means a more extensive decision. Professor Rick Hasen rightly notes that this is a significant step -- and the blogosphere is on fire with predictable predictions that the Court is poised to upend campaign finance law once again. But I think the real significance may be different than the primary chatter indicates. And I think much will depend on the other shoe, yet to drop: what happens to James.

Hasen, and plenty of others, have correctly noted that in reviewing McCutcheon, it is possible that the Court will revisit its approach to the constitutionality of contribution limits more generally: a wholesale change to the basic rules of the game. Certainly, the Court has, in the past, taken small cases and turned them into big ones. But not every tremor portends a Vesuvius.

Revising the overall approach to contributions is in no way necessary to deal with the issue in McCutcheon. Currently, the Court looks much more closely at limits on expenditures (which involve direct payments for expression) than at limits on contributions (which involve expression only by proxy). But even though looking at the justification for contribution limits involves reading glasses and not an electron microscope, a review with reading glasses is still meaningful. It is entirely possible for the Court to take a firm look at the contribution limits in McCutcheon without upping the general prescription.

Similarly, Hasen notes that reviewing McCutcheon involves a review of part of the landmark Buckley v. Valeo case. But as I suggested in my exam, the aggregate limits are a part of the case that got little attention from the Court at the time: six sentences of 294 total pages. There are many ways in which the Court could address the constitutionality of the aggregate limits, including the justification for those limits, that leave intact the essential Buckley "settlement": a harder look at limits on expenditures than contributions and ample reasons to limit contributions in order to prevent corruption. Even though the issue in McCutcheon was addressed by the Buckley Court, there is no reason that a finding for the plaintiffs has to amount to an unraveling of Buckley more broadly.

Instead, the real significance of the case may come with a decision whether to hear James at the same time. James is about contributions to candidates, and the potential for one donor to corrupt candidate X by contributing amounts that are individually unsuspicious to 20 other candidates, all of whom give chunks of that cash over to X. McCutcheon concerns candidates as well, but adds the complicating factors of party committees and PACs -- artificial entities that can be formed at will, each of which can receive more money per person, and for whom there may be significantly more reason to act as a conduit. There are far more reasons for Congress to be concerned about contributions to parties and PACs -- and for the Court to credit those concerns -- than for it to regulate Tuckerberg's contributions to his "friends." But it is easier to lose sight of the most significant elements in McCutcheon if James is not also before the Court to focus attention on the distinct roles that PACs and parties play.

The Court has not yet decided what to do with James: whether to hold it, address it summarily or hear it with McCutcheon. Its decision could well signal what aspects of the case have drawn the Court's attention.

It's one exam answer that should be particularly interesting to grade.

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February 25, 2013

Kabateck.jpgBy Brian S. Kabateck '89, Guest Alumni Blogger

Concepcion v. AT&T, 131 S.Ct. 1750 (2011) is arguably the worst consumer Supreme Court decision in the last 20 years. Interestingly, there hasn't yet been a public outcry. In this horrible decision, the court held that the Federal Arbitration Act trumps all other laws. If you don't know the case and have been living in a bubble for the last two years, the facts are simple: The Concepcions sued AT&T Mobility claiming that their cell-phone company had engaged in deceptive advertising by falsely claiming that their plan included free cell phones. Their suit became a class action. The U.S. District Court for the Central District of California refused to dismiss the suit despite the fact that the contract mandated binding arbitration and prohibited class action lawsuits. The district court ruled that California law prohibits consumer adhesion contracts that waive the customer's right to a jury trial, mandate arbitration and purport to waive the right to participate in a class action lawsuit. The Ninth Circuit Court of Appeals upheld the District Court's decision. The Supreme Court disagreed and held that the Federal Arbitration Act (a law that was written before the Great Depression) mandated that any arbitration agreement was absolutely enforceable, even if it appears in a contract of adhesion.

Before Concepcion, contracts of adhesion couldn't force people into arbitration in California, and class action waivers were generally held unenforceable. There are many cases all across the United States today with varying decisions on the enforceability of mandatory binding arbitration agreements. There is no doubt that mandatory arbitration in consumer contracts of adhesion is bad for most Americans. The only groups that like the idea of mandatory arbitration are big business and the chamber of commerce. Arbitration doesn't discourage consumer litigation; it eliminates it entirely. Who is going to arbitrate a $75 dispute with your phone company provider? And if your phone company is overcharging you $75, where does the consumer go? Or a $500 dispute? Or a $1,000 dispute? While a $75 rip off may not be the worst thing that happens to a consumer, it nevertheless is wrong and should be stopped. And a $75 dispute magnified over tens of thousands of customers means millions of dollars the corporation is stealing from its consumers. The state and federal governments have neither the ability nor the resources to litigate these cases on behalf of consumers. So if class actions are eliminated for this category of cases, and the government won't enforce the laws, it is a license to steal from America.

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January 10, 2013

Vairo Faculty Summary Judgments Faculty Blog.jpgProfessor Georgene Vairo, an expert on class-action litigation who teaches and writes in the areas of mass torts, weighs in on Standard Fire Insurance Co. v. Knowles, argued before the Supreme Court on Jan. 7:

Key Issue: Can a plaintiff stipulate to damages below CAFA's federal jurisdictional threshold of $5 million where the aggregate claims of all class members exceed that amount?

Key Takeaway: The case comes down to a choice between allowing plaintiffs to openly manipulate CAFA's jurisdictional requirements, as well as scaling back the "master of the complaint" rule.

Prediction: I hope Justice Kagan writes the majority opinion. She reminded the defendant that there are two better options than requiring removal at this time. If the case is worth far more than $5 million, then the plaintiff is not an adequate representative of the class. If the plaintiff tries to play around once back in state court and get more than $5 million, then the defendant can remove again.

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January 9, 2013

NeJaime2.jpgBy Associate Professor Douglas NeJaime

This op-ed originally appeared in The Advocate.

The Supreme Court has decided to hear two cases relating to marriage equality. The first, United States v. Windsor, raises the constitutionality of section 3 of the federal Defense of Marriage Act, which denies federal recognition to same-sex couples' marriages. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. After the court's announcement, many commentators and some LGBT activists speculated that the court's ultimate decision in the cases would bring the end of marriage-based discrimination against same-sex couples. Some expect the justices to extend the fundamental right to marry to same-sex couples. Others are focusing on equal protection, anticipating a ruling that sexual orientation classifications merit heightened scrutiny. Such a decision would immediately cast doubt on any form of sexual orientation discrimination, including the marriage prohibitions that a vast majority of states maintain.

But this might all be wishful thinking.

Yes, the court might have taken the Windsor case because the Second Circuit Court of Appeals applied heightened scrutiny to sexual orientation classifications, whereas the First Circuit's Gill v. Office of Personnel Management decision applied only rational basis review. But, more likely, the court might have taken Windsor and not Gill because all nine justices could participate in the case. It was widely believed that Justice Kagan would have recused herself from Gill given her role in the Obama administration during deliberations regarding that case.

[Read the complete story here.]

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November 16, 2012

NeJaime2.jpgBy Associate Professor Doug NeJaime

On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples — something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

The entire piece is available on Jurist's Forum. Read the complete piece.

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October 30, 2012

Lapp_SJ.jpgBy Associate Professor Kevin Lapp

Moncrieffe v. Holder, argued in mid-October before the United States Supreme Court, involves a non-citizen who pled guilty in Georgia state court to misdemeanor possession with intent to distribute 1.3 grams of marijuana (about half the weight of a penny) with no evidence that he received any money in exchange for drugs. Federal law likewise considers possession with intent to distribute such a small amount of marijuana without remuneration to be a misdemeanor offense. Knowing those two things, you'd probably puzzle at the notion that the government is seeking to classify Moncrieffe as an "aggravated felon" for purposes of deporting him. But in the Wonderland world of immigration law, that is just what is happening.

The issue in Moncrieffe v. Holder is whether Moncrieffe's state misdemeanor drug possession offense constitutes a "drug trafficking aggravated felony" under federal law. Longstanding precedent, and recent Supreme Court case law, says that courts should apply what is called the categorical approach to answer the question. That approach involves determining the minimum conduct that is necessarily established by the state conviction, and prohibits looking into anything behind the conviction, such as underlying facts or possible alternative offenses that could have been charged. If the minimum conduct of the state crime is necessarily equivalent to a felony under federal narcotics law, then even a state misdemeanor conviction becomes an "aggravated felony" for immigration purposes. If it is not necessarily a federal felony (because the state crime captures conduct that could be either a federal felony or misdemeanor), then the categorical approach says that it is not an aggravated felony.

Moncrieffe's state misdemeanor marijuana offense does not require proof of any minimum amount of marijuana, nor does it require proof of remuneration. As such, it criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. Because the state crime encompasses conduct that would clearly be a federal misdemeanor, Moncrieffe argued that the categorical approach means that it is not necessarily equivalent to a federal felony and should not be considered an aggravated felony. The upshot is that he remains deportable, but has an opportunity to seek relief from deportation.

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October 9, 2012

westfaulcon2.jpgProfessor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.

In it, she wrote:

This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.

Read the complete brief.

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July 10, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

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June 28, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

The Stolen Valor Act is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

I believe - like a majority of my students - that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the "integrity" or reputation of the government's chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted my all nine members of the Supreme Court (and for what it was worth, all of my students).

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