Elena Kagan – Overlawyered

Elena Kagan on “taking big questions and making them small”

Walter Olson — Sun, 23 Sep 2018 16:01:30 +0000

On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:

KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.

But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.

This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”

You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”

We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.

I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).

Tags: Elena Kagan, live in person, on TV and radio, redistricting reform, Supreme Court

Elena Kagan on “taking big questions and making them small” is a post from Overlawyered - Chronicling the high cost of our legal system

Justice Kagan: Paul Krugman using “just ridiculous language” on courts

Walter Olson — Sun, 23 Nov 2014 04:55:06 +0000

Speaking at Princeton, Justice Elena Kagan described as “just ridiculous language” Paul Krugman’s claim that the higher federal courts are “corrupt.” It is just ridiculous, as we noted the other day, and it’s nice to hear Krugman called out for it at his own university by someone in a position to know. +1 Elena! [Daily Princetonian via Josh Blackman]

Tags: Elena Kagan, Paul Krugman

Justice Kagan: Paul Krugman using “just ridiculous language” on courts is a post from Overlawyered - Chronicling the high cost of our legal system

Philosophy, not gender, drives SCOTUS decisions

Walter Olson — Tue, 19 Jun 2012 04:35:20 +0000

My new post at Cato at Liberty takes a look at yesterday’s Supreme Court decision in Williams v. Illinois, a Confrontation Clause case involving an accused rapist. It’s one more data point bolstering the observation that if the three most liberal members of the current Court (Ginsburg, Kagan, and Sotomayor) vote together with some frequency, it’s more because they share a certain philosophy about the law than because they’re all women.

P.S. I see Eugene Volokh got there first, drawing similar conclusions (& welcome Nabiha Syed, SCOTUSblog readers).

Tags: Elena Kagan, Sonia Sotomayor, Supreme Court

Philosophy, not gender, drives SCOTUS decisions is a post from Overlawyered - Chronicling the high cost of our legal system

August 10 roundup

Walter Olson — Tue, 10 Aug 2010 12:12:46 +0000

Oregon 7-year-old gets apology, she can go on running her lemonade stand after all [Skenazy, Josh Blackman]
“Judicial recusals and politics make a bad mix” [Bainbridge]
Sypher guilty in extortion trial [Above the Law and followup, earlier]
“Chevron’s Explosive Filing on Collusion Between Plaintiffs and the Ecuadorian Court-Appointed Expert” [Roger Alford, Opinio Juris and more, Alison Frankel/American Lawyer, Anderson, Volokh, ShopFloor]
Meet author of “How to Sue Your Doctor … and Win!” [Media Matters via Popehat]
FBI writes to Wikipedia demanding removal of representation of its official seal [Ron Coleman]
“Kagan’s Confirmation Could Be High-Water Mark for Big Government” [Shapiro, Cato]
“Righthaven’s lawsuits are ‘the McDonald’s coffee cases of copyright litigation'” [Las Vegas Sun via Romenesko]

Tags: Chevron, copyright, Elena Kagan, legal extortion, recusals, small business, Wikipedia

August 10 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

July 27 roundup

Walter Olson — Tue, 27 Jul 2010 11:10:25 +0000

Dodd-Frank major oops: Faced with new liabilities, agencies refuse to let their ratings be used in bond issuance [WaPo, Salmon] SEC scurries to suspend requirement for six months while it figures out what to do [Salmon]
Left-leaning law lectern: study of newly hired lawprofs identifies 52 liberals, 8 conservatives [Caron, ABA Journal, Lindgren/Volokh]
“Progress in protecting gripe site owners against silly trademark claims” [Levy, CL&P]
“Congress Investigates Beck, Ingraham Advertisers” [Stoll]
“Uncle Sam Kicks Out Legal Immigrants for Down Profits in Recession” [Shapiro, Cato]
Judge punishes Goodyear for discovery heel-dragging by denying it chance to disprove liability in $32M case [Las Vegas Sun]
“$2.3M verdict against Dole thrown out on fraud grounds” [PoL, background]
Paul Campos vs. Elena Kagan: this time it’s personal [Lawyers Guns & Money]

Tags: broadcasters, discovery, Elena Kagan, immigration law, law schools, online speech, sanctions, trademarks, Wall Street

July 27 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

July 12 roundup

Walter Olson — Mon, 12 Jul 2010 12:24:47 +0000

Kagan to senators: please don’t confuse my views with Mark Tushnet’s or Harold Koh’s [Constitutional Law Prof]
Too much like a Star Wars lightsaber? Lucasfilm sends a cease-and-desist to a laser pointer maker [Mystal, AtL]
Ottawa, Canada: family files complaint “against trendy wine bar that turned away dinner party because it included 3mo baby” [Drew Halfnight, National Post]
“House left Class Action Fairness Act alone in SPILL Act” [Wood/PoL, earlier]
Not so indie? Filmmaker doing anti-Dole documentary on Nicaraguan banana workers says he took cash from big plaintiff’s law firm Provost Umphrey [AP/WaPo, WSJLawBlog, Erik Gardner/THREsq., new plaintiffs’ charges against Dole]
Will liability ruling result in closure of popular Connecticut recreational area? [Rick Green, Hartford Courant; earlier]
Class action lawyer Sean Coffey, running for New York attorney general, has many generous supporters [NYDN, more, WNYC (Sen. Al Franken headlines closed fundraiser at Yale Club)]
“Judge Reduces Damages Award by 90% in Boston Music Downloading Trial” [NLJ, earlier on Tenenbaum case]

Tags: age discrimination, Al Franken, attorneys general, banana pesticide litigation fraud, BP Transocean oil spill, Canada, Connecticut, Elena Kagan, New York, politics, Provost Umphrey, recreation, restaurants, RIAA and file sharing

July 12 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

July 6 roundup

Walter Olson — Tue, 06 Jul 2010 05:14:14 +0000

“Kagan refused to identify anything the government couldn’t do under its Commerce Clause power” and “consciously left herself plenty of breathing room to cite foreign law inappropriately” [Ilya Shapiro, more]
Multiple civil/criminal hats? “The odd responses of the attorney general to the oil spill” [WaPo editorial]
Phillies Phanatic, “‘Most-Sued Mascot in the Majors’ Is Back in Court” [Lowering the Bar, which also hosts Blawg Review #271 this week]
Federalist Society has a new blog;
California will pay $20 million to woman abducted for nearly two decades [AP]
Charges dropped against teen who tried to help lost kid in shopping mall [Lenore Skenazy, earlier]
Two libertarians arrested after videotaping police in Greenfield, Mass. [Balko, earlier here and here]
“‘Ambulance Chaser’ Lawsuits Hound Apple Over iPhone 4” [Atlantic Wire]

Tags: Apple, baseball, BP Transocean oil spill, California, cellphones, Elena Kagan, Federalist Society, police

July 6 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

June 30 roundup

Walter Olson — Wed, 30 Jun 2010 05:10:04 +0000

Real-life Lysistrata: “Kenyan man sues over sex boycott ‘stress'” [Telegraph]
Kagan record not reassuring on campaign-speech issues [Allison Hayward, CCP, Daniel Shuchman/Reason] A “fair-weather originalist”? [Ilya Shapiro, Cato]
Eugene Volokh thinks the Court made the right call in the student-group-recognition Christian Legal Society case, while Richard Epstein thinks it didn’t;
Coverage of Ted Frank’s objection in A.G. Edwards settlement [Daniel Fisher, Forbes; Bill McClellan, St. Louis Post-Dispatch]
West Virginia: “Was DuPont railroaded in Harrison County?” [Don Surber]
“Predicate” approach hasn’t always worked well as way to curb government privacy incursions [Stewart Baker]
“Florida Court Tosses Out $522 Million Verdict Against Accounting Firm” [Daily Business Review]
Justice Department dereliction? “Inside the Black Panther case” [J. Christian Adams, Washington Times]

Tags: accounting, campaign regulation, class action settlements, Elena Kagan, Ted Frank, West Virginia

June 30 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Elena Kagan on liability limits

Walter Olson — Tue, 29 Jun 2010 17:16:52 +0000

She’s not expected to sympathize with them, for reasons Ted outlines at Point of Law.

Tags: Elena Kagan

Elena Kagan on liability limits is a post from Overlawyered - Chronicling the high cost of our legal system

June 24 roundup

Walter Olson — Thu, 24 Jun 2010 10:58:27 +0000

“IP Lawyer Who Spotted Expired Patent on Solo Cup Lid Loses Quest for Trillions in Damages” [ABA Journal, earlier on “false markings” suits here, here, etc.]
Like we’re surprised: Linda Greenhouse favors sentimental (“Poor Joshua!”) side in 1989 DeShaney case and hopes Elena Kagan does too [NYT Opinionator, my take a few years back]
Why is Le Monde in financial trouble? For one thing, firing a printing plant employee costs €466,000 [Frédéric Filloux, Monday Note via MargRev]
“Will these salt peddlers stop at nothing?” Michael Kinsley on NYT sodium-as-next-tobacco coverage [Atlantic Wire]
“‘Victim’ Gets $4.17 Coupon, Lawyers Get $10 Million Cash”: Expedia class action settlement [John Frith, California Civil Justice Blog]
Scruggs investigation finally over as feds drop probe of political operative P.L. Blake; several figures in Mississippi scandal are up for release soon from prison [Jackson Clarion Ledger]
$20 billion Gulf spill fund: “Oil Gushes and Power Rushes” [Sullum, Althouse]
“NYC Naked Cowboy to Naked Cowgirl: Stop copying me” [AP]

Tags: BP Transocean oil spill, class action settlements, Dickie Scruggs, Elena Kagan, France, newspapers, NYC, P.L. Blake, patent marking, salt, Supreme Court

June 24 roundup is a post from Overlawyered - Chronicling the high cost of our legal system