- If you regard Neil Gorsuch and Brett Kavanaugh as “very decent, very smart individuals,” are tired of party-line confirmation bloc votes, and don’t favor adding to the line-up of nine Justices, you have a co-thinker at the Supreme Court [John McCormack, National Review; Nina Totenberg/NPR interview with Ruth Bader Ginsburg]
- “Manhattan federal judges are getting fed up with notorious copyright ‘troll’” [Alison Frankel, Reuters; ABA Journal; Mike Masnick, TechDirt; Richard Liebowitz]
- Idaho, though far from California, still falls under the Ninth Circuit’s distinctive body of law protecting homeless encampments against municipal authority [Steve Malanga, City Journal, earlier here, here]
- “Liability for User-Generated Content Online Principles for Lawmakers” [53 individual and 28 institutional signers including many names and groups familiar in this space; TechFreedom] “Comments on Sen. Hawley’s ‘[Ending] Support for Internet Censorship Act'” [Eric Goldman] And the Missouri senator’s latest: “Josh Hawley Wants To Appoint Himself Product Manager For The Internet” [Mike Masnick, TechDirt]
- Jury convicts south Texas judge charged with bribery, conspiracy and other crimes [Lorenzo Zazueta-Castro, McAllen Monitor; Fred W. Heldenfels IV, Corpus Christi Caller-Times/Texans for Lawsuit Reform (“The fact that a judge under indictment for accepting bribes can run for higher office and win should be a major red flag for Texans.”)] Michigan Supreme Court removes Livingston County judge over long list of ethical violations, criminal charges also pending [Andy Olesko, Courthouse News]
- “Auction Winner Learns Why Property Was Such a Great Deal: It’s Only 12 Inches Wide” [Kevin Underhill, Lowering the Bar]
Complying with wage and hour law these days is no easy matter, whether you’re Sen. Bernie Sanders or running a California offshore oil platform. I explain why in my new Cato post on Parker Drilling v. Newton, decided by the Supreme Court last month. More on Sen. Sanders’s travails here and here, from my Cato colleague Ryan Bourne.
- A longtime progressive objects to the diversity pledge (applying to personal and professional lives alike) soon to be expected of Ontario lawyers and paralegals as a condition of their licenses [Murray Klippenstein with Bruce Pardy, Quillette]
- More on Cato’s First Amendment challenge to SEC gag-order settlements [Cato Daily Podcast with Clark Neily, Robert McNamara, and Caleb Brown]
- “Federal judge sanctions lead lawyer in Roundup trial for opening statement ‘misconduct'” [Debra Cassens Weiss, ABA Journal]
- Unanimous high court (Sotomayor concurring in judgment) rules Ninth Circuit may not count Judge Stephen Reinhardt’s vote in decisions issued after his decease: “Federal Judges Are Appointed for Life, Not for Eternity” [Eugene Volokh]
- Copyright law firm has “a pattern of making aggressive and, in many cases, unsupportable demands” for payment [Paul Levy, CL&P]
- “Genealogists shouldn’t have to become technophobes,” yet to spit in a cup is now to enter oneself and one’s relatives intoto a genetic panopticon for the benefit of law enforcement [Matthew Feeney, Real Clear Policy]
“A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.” The ruling, by a unanimous 11-member en banc panel of the Ninth Circuit, found that thelaw violates First Amendment rights of commercial speech. [AP/BakersfieldNow; American Beverage Association v. City and County of San Francisco]
Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.
Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?
Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.
Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).
The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.
[cross-posted from Cato at Liberty]
Arizona Attorney General Mark Brnovich and Ilya Shapiro on the case for breaking up the overburdened, overbusy Ninth Circuit, which can be made independently of the usual ideological concerns [Cato/WSJ] Because of the Ninth’s unique practice of forming en banc panels by randomly selecting 11 of its 29 judges rather than summoning the full number, I’ve referred to it in the past as “the court that’s not all there.”
- “Judge dismisses lawsuit that challenged Zillow’s home price estimates” [Chicago Tribune, earlier]
- Seventh Circuit: immunity doctrine bars relief for governor’s aide whose home was raided in Wisconsin John Doe probe [Archer v. Chisholm, earlier]
- Good news: Federal court kills Obama overtime-for-midlevel-employees rule much criticized in this space [Trey Kovacs, CEI]
- Not so good news: new FDA management decides to leave in place Obama menu labeling regs much criticized in this space [Katherine Mangu-Ward, Baylen Linnekin]
- Senate holds hearing on proposals to break up Ninth Circuit [Diamond Naga Siu, Politico, earlier]
- “Will U.S. Policymakers Repeat Our Past Protectionist Failures?” [Scott Lincicome, Cato]
Mostly unrelated to this week’s dramatic oral argument before a Ninth Circuit panel is the perennial question of whether the circuit itself has grown too large and should be split in two, separating most other Western states from California [Debra Saunders, Las Vegas Review-Journal]:
It’s so big that Congress has looked at bills to split the circuit since 1941, and it’s so big that none of those measures have succeeded.
This year, however, Sens. Jeff Flake and John McCain, both R-Ariz., see the possibility of success. They’ve introduced legislation to create a new 12th Circuit by peeling away six states — Nevada, Washington, Idaho, Montana, Arizona and Alaska. The slimmed-down 9th Circuit would continue to hear appeals from California, Oregon and Hawaii, as well as Guam and the Northern Mariana Islands….
The 9th Circuit is the only circuit to hold “en banc” — or full bench — hearings with 11 of its 29 judges [rather than the full number]. Olson has taken to calling the 9th Circuit “the court that’s not all there.”
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.