Recently in Supreme Court Category

We discussed the case of Sears v. Butler, and I expanded on it at Forbes.com. The Supreme Court chose not to put it on the oral-argument calendar, but asked the Seventh Circuit to reconsider in light of Comcast v. Behrend. [Fisher; see also Olson]

Andrew Trask thinks this shows that Comcast v. Behrend is having "real effect," but I think it's too soon to tell whether lower courts will give the decision narrow or broad reach. I think at least one of the three remands given will result in reaffirmation of the pre-Comcast decision.

Coming up on the Supreme Court class action docket next week: the certiorari petition in Sears v. Butler. In yet another class action over alleged defects causing biofilm in washing machines, a Judge Posner opinion took the position that the class-action mechanism was appropriate to resolve a single issue, following the Whirlpool v. Glazer decision we criticized earlier, and which the Supreme Court GVR'd in the wake of Comcast v. Behrend.

As the opposition to certiorari notes, the case is in a strange procedural posture: there is no class certification order as of yet (though the Seventh Circuit's ruling would seem to all but dictate one on remand). The Supreme Court has yet to grant certiorari on a Rule 23(f) remand decision, but nothing precludes them from doing so, and this may well be a good case to re-assert Rule 23(b)(3) predominance standards. Related: Washington Times.

(This post was corrected: it originally read "23(f) decision," when it should have said "23(f) remand decision.")

The Epstein/Landes/Posner methodology has been refuted numerous times, but it's still getting play as they release a new paper repeating their earlier methodological errors and concluding that the current Supreme Court is more "pro-business" than any other. (Why not conclude that the Ninth Circuit is more anti-business than any other American appellate court in history, and that has resulted in a greater degree of error correction?) Jonathan Adler @ Volokh and Greve take up the cudgel again. More: January 2012 (with earlier links).

Ezra Klein complains that Scalia commented from the bench that "there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not." According to Klein, Scalia should've been disabused by this notion because the American Sociological Association filed an amicus brief taking a definitive position on the question.

But Scalia's comment surely was prompted by page 12 and footnote 5 of the National Association of Evangelicals amicus brief.

Now, without reading the underlying cited studies, on a question of sociology, I'd be personally inclined to favor the ASA over the NAE, though both are far more politicized bodies than either would care to admit. On the other hand, sociology isn't an especially hard science. That said, if one side says "There's no disagreement" and the other side says "There's disagreement," complete with cites to disagreeing studies, it would seem to me that the side claiming disagreement is technically correct, even if one side of the disagreement has a stronger argument.

Frankly, given the very short history of gay adoption, it seems very improbable that anyone has a definitive answer on the effects of gay adoption. My null hypothesis is that two well-adjusted gay parents are going to do just as good a job as two well-adjusted heterosexual adoptive parents and better than a single-parent household or an orphanage. The gay parents I know are well above average. But there simply isn't any legitimate long-term empirical data on the question one way or the other—especially given that the gay couples who have adopted in the last twenty years are likely to have considerably different demographics than the straight couples who have adopted, making ceteris paribus judgments difficult.

Klein complains that "Scalia offered no details or evidence of this considerable disagreement among sociologists" which is a ludicrous standard for a comment from the bench during oral argument. Klein's attack on Scalia for disagreeing with Klein's opinion and the ASA is entirely unfair.

The existence of disagreement is relevant if the question is whether anti-gay-marriage laws have a "rational basis." One can legitimately question whether that should be the legal standard for evaluating laws discriminating against gays; there's a good argument for what is known as heightened scrutiny. One can also dispute (as some libertarian lawyers do) whether courts should be so deferential to legislatures in conducting rational-basis review—though Klein and liberals would surely throw a fit if the Supreme Court favored economic thought in striking down minimum-wage and rent-control laws as lacking a rational basis the way Klein asks the Supreme Court to give the American Sociological Association veto power over a legislative judgment. Simply put, under normal "rational-basis review," if conducted as it would be under any other constitutional challenge to any other kind of statute, anti-gay-marriage laws are constitutional. Lots of dumb laws I don't like are constitutional when subjected to existing rational-basis review doctrine.

Disclaimer: as you know, I support legislative initiatives for marriage equality, and have otherwise spoken out in favor of gay rights.

Update: Walter Olson @ IGF on how the attack on gay adoption is an attack on adoption.

Commenters note that it's possible for one side of a disagreement to be inherently bogus. This is correct. But as much as I want it to be true, it's simply not the case that "Gay adoption is harmless" is at the level of scientific truth of "The earth revolves around the sun" or evolution. Neither side has definitively proven its case. Over time that will mean we can be more and more confident that the null hypothesis is correct. If I can place a wager where the social science will be in fifty years, I'd certainly lay odds that the null hypothesis is correct. But it's simply not the case that, because of a handful of studies subjectively measuring a few dozen children without adequate controls, we know for a fact that there's no long-term effect.

I'm sympathetic to an argument for requiring legislatures to be forbidden from creating restrictions on freedom of choice in the absence of scientific truth, but the simple reality is that, under current law, states have that right to ban sports betting and poker, to ban prostitution and Four Loko, to require a $9/hour minimum wage, and to restrict gay marriage--assuming that current Supreme Court precedent that laws discriminating against homosexuals need only meet rational basis review hold. We presume as a matter of legal review that the legislature knows what it is doing. I certainly don't agree with the proposition that legislative bodies always know what they're doing; I don't like these laws; other people like some of these laws and not others; but, in the absence of reversing existing precedent, all of these laws are currently within the range of constitutional state regulatory power as a positive matter.

I'm comfortable with the legal argument that the premise and existing precedent is mistaken, and that courts as a normative matter should, under the Equal Protection Clause, give more scrutiny to discrimination against homosexuals. I'm open to the argument that courts should have the power to use rational basis review in a more searching fashion, though it would be a big shift in the separation of powers and would politicize our courts far more than they are politicized now. And I disagree with Scalia. But he's not being intellectually dishonest to come to the opposite conclusion within the existing legal framework and precedent. The case for stare decisis in this area is far stronger than the case for stare decisis in any number of areas where liberals insist conservative justices cannot act because of earlier decisions.

A bitterly divided Supreme Court ruled 5-4 to reverse the Third Circuit and decertify a class in Comcast v. Behrend (SCOTUSblog; How Appealing news roundup) yesterday. Trask has a good summary. Skadden reports that the

decision is welcome news for defendants given the recent weakening of class action standards by some federal courts. By clarifying that a trial court must apply a "rigorous analysis" to each of the Rule 23 prerequisites, including predominance -- even where such analysis entails an overlap with the merits underlying the plaintiff's claims -- the Court has indicated that lax class certification standards have no place in federal class action practice. In addition, those lower courts that have resisted the Supreme Court's recent class certification decisions may be more inclined to deny class certification in cases involving individualized damages determinations.

See also WLF. But plaintiffs' lawyers are telling Reuters that decision won't make much difference and can be readily evaded in future cases. We'll know more what the Supreme Court thinks about the scope of Comcast when they take action on the pending Whirlpool v. Glazer cert petition.

I'll be on WYNC today from 9:30 to 9:40 am to discuss the practice of hiring line-sitters to attend Supreme Court arguments and other court and federal hearings.

A Jada Smith piece discusses the decades-old practice of paid line-sitters holding places in line for the fifty seats open to the public for Supreme Court hearings.

Adam Liptak tweets that the idea of seats going to the highest bidder violates the concept of "Equal Justice Under Law." But just because the Supreme Court doesn't charge for seats doesn't mean that the seats aren't going to the highest bidder: the "first-come, first-serve" rule (which doesn't apply to journalists like Liptak, who get a guaranteed front-row seat in press gallery) just charges by the bidders with the most time, rather than the most money: over 24 hours for the most popular arguments. It's hardly a surprise that the result is that there's room for a deal, since one can pay people for their time. It's not free for someone with a job to sit in line for days, especially if they don't live in Washington to begin with. (If the Supreme Court simply gave out 50 tickets for free to each argument, one would quickly see those tickets on Ebay or Craigslist or StubHub.)

Now, one can complain that line-sitting companies are capturing rents from scarcity that would be better served in the judicial coffers: at $50/hour for a line sitting company, it appears that this argument could have raised $100,000 or more for the courts if the Supreme Court had simply sold tickets.

It's worth noting that the Supreme Court is already the most open of the branches. Unlike the legislative and executive branches, when the Supreme Court makes a decision, it is immediately public, and when it's precedential, they explain their reasoning. Lobbyists have secret conversations with legislators and regulators, but lawyers' arguments to the Supreme Court are constrained by public briefing. The argument may not be contemporaneously available to the entire public, but the oral argument is the least important part of the process and is, in any event, available in transcript form same day, and audio recording not much later. Where's the real harm?

As "outrages" go, let's take a look at PACER, where the judiciary overcharges by over $100 million over costs for documents available in public court dockets and provided over the Internet—and that was before PACER raised its prices 25% this year. (For a non-profit like the Center for Class Action Fairness, PACER charges are a non-trivial part of our annual spending.) And don't even get me started about the waste of money of over a hundred separately designed and programmed and inconsistent ECF filing systems for each of the courts.

In a unanimous decision, the Supreme Court rejected the most notorious tactic for evasion of federal jurisdiction under the Class Action Fairness Act. More: Olson @ Cato; OL; earlier at POL.

Brian Wolfman complains that this is a "pro-defendant" decision and it will certainly be spun that way. But it's important to recognize that it's also a pro-consumer decision. The same hellhole judges that ignore due process concerns of defendants when refusing to rule on personal jurisdiction issues or countenancing abusive expensive discovery or improperly certifying classes (on which, see this great Roger Parloff article) go on to ignore due process concerns of absent class members when the defendants facing this barrage of litigation pay Danegeld to go away. Miller County trial lawyers had collected hundreds of millions of dollars of legal fees from forum-shopped class-action settlements; the class members whom they purportedly represented likely didn't even get 10% as much. We'll never know because judges approved these settlements without inquiring into that figure, and refused defendants' attempts to conduct discovery in that area. It was the pro-consumer aspect of CAFA that led the Center for Class Action Fairness to file an amicus brief. Defendants win and consumers win; the only losers are rent-seeking plaintiffs' attorneys that had been running roughshod over the rights of both.

Andrew Trask has good analysis and points out that the Supreme Court has once again rejected the entity theory of class actions. As I note in my MI white paper, the class action is a procedural device that can't be used to affect individuals' substantive rights. It makes a difference: given that the Supreme Court has repeatedly rejected an "entity" theory of class actions, it implies that class action settlements that favor third parties—i.e., cy pres recipients, or non-class-beneficiaries of future injunctive relief—over class members are inappropriate.

Most of the attention on Wednesday's argument is on the Voting Rights Act case, Shelby County v. Holder (see the Washington Post profile of Ed Blum), but I'm paying more attention to the undercard, American Express v. Italian Colors.

A Reuters report quotes me. Unfortunately, in a story this short, if you tell a reporter four things (like (paraphrasing) "arbitration actually works out better for consumers than class actions most of the time, so long as the clause permits vindication of the consumer right; the Chamber of Commerce brief refutes the false factual premise that this arbitration clause doesn't vindicate the consumer right; but Italian Colors attorney Paul Clement has very cleverly argued for affirmance on narrow grounds on a technicality that would preclude the Court from inquiring into the factual premise; if Italian Colors does prevail on those narrow grounds, future defendants can avoid losing by litigating the case differently than American Express did and slightly tweaking their arbitration clauses"), not all of that nuance is going to make its way into the article. For my more detailed arguments on the intersection of arbitration and class action waivers, see my recent Manhattan Institute report; the 700-word version was in Investors Business Daily last week.

Michael Greve's take on the case, and its larger role in federal-state relations and the scope of the Commerce Clause, is a must-read. More at Business Roundtable Blog.

In the movie "Hot Coffee," Susan Saladoff complains that grievously injured medical malpractice victims who cannot recover their full measure of economic damages result in a subsidy from taxpayers (who end up picking up the bill) to defendants. One can question whether the defendants in the case she singled out were guilty of anything more than being blamed for a bad medical result, and one can complain that she conflates the issue of amorphous noneconomic damages with the particular potential injustice of capped economic damages, but she is right that caps for economic damages are a bad idea.

But it's not the case that trial lawyers really care so much about the impact on taxpayers. North Carolina law permits the state to recoup Medicaid expenses from the assets of patients helped, but has an exception for noneconomic damages recovered. So cases don't go to trial; instead the parties, with a nudge and a wink, carve the third-party taxpayer out of the recovery by characterizing the full settlement as non-economic damages.

To what extent can medical malpractice settlements evade the Medicaid clawbacks through the legal fiction that the settlement reflects solely pain & suffering damages? So asks the case of Delia v. E.M.A., argued earlier this week. [McClatchey]

The Obama administration has sided with trial lawyers over taxpayers, flipping what the prior federal position was. Counterintuitively, so did a brief for the Federation of Defense and Corporate Counsel. Game theory tells us why: the Medicaid clawback makes going to trial less valuable for plaintiffs, and creates settlement pressure to avoid the clawback, and defendants can split the benefit of freezing out taxpayers with the plaintiffs.

Texas filed a good brief for the petitioners.

Note that such elastic settlements are only possible in a jurisdiction with uncapped noneconomic damages.

At argument, the Supreme Court seemed skeptical of North Carolina's position, though that likely reflected the arbitrary particularities of the North Carolina statute, which irrebuttably defines the amount of any settlement—or jury verdict—attributable to medical expenses or noneconomic damages. On the other hand, the Court also expressed skepticism of the respondents' position that the state had to make an individualized assessment of every case.

(Related: why giving the state a share of punitive damages doesn't work; why ending deductibility for punitive damages is pernicious and POL).

Must-reads from Walter Olson and Michael McConnell. Earlier.

Update: more from Andrew Grossman. Can we partially credit Bork with the 1980s turnaround in the American economy?