Posts Tagged ‘Ninth Circuit’

ABA review of judicial nominations again comes under fire

Josh Blackman, at The Atlantic and Volokh Conspiracy, has the tale of how in the nomination of conservative Ninth Circuit nominee Lawrence Van Dyke, the American Bar Association (ABA) appears to have played fast and loose with the interview process, breaking its own rules along the way. Given “that the ABA cannot be trusted to accurately recount the conversations” resulting from its inquiries, Blackman proposes that in future “these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations.”

September 20 roundup

  • Oregon: “Union-Backed Ballot Initiative Would Limit Grocery Stores to 2 Self-Checkout Machines” [Christian Britschgi, Reason]
  • Not unexpectedly, given its own precedent, Ninth Circuit rules Idaho inmate entitled to sex reassignment surgery [Amanda Peacher and James Dawson, NPR; pre-ruling (July) KRCC/NPR podcast and interview with Peacher, I’m quoted as in earlier coverage; earlier]
  • I wrote a personal recollection at Cato of philanthropist David Koch;
  • “Flight attendants and airport staff now get trained to intervene in what federal officials (falsely) portray as an epidemic of airline-based sex trafficking which can be spotted by good Samaritans who know the ‘signs.'” And mistakes will happen [Elizabeth Nolan Brown, Reason]
  • Population growth has caused the Ninth Circuit to bulge at the seams. Left-right political advantage isn’t a good reason to break it up, but there are plenty of nonpolitical reasons that are good [Ilya Shapiro and Nathan Harvey, George Mason Law Review]
  • “The legal profession was regarded by both the authors of The Federalist and Alexis de Tocqueville as the anchor of the republic —- a barrier to destabilizing innovation and a constraint on excessive democratic passions.” What happened? [John McGinnis]

July 31 roundup

Drilling for dollars, retroactively, in wage-hour law

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.

March 6 roundup

  • 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]

San Francisco law requiring warnings in sugary-drink ads struck down

“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]

Supreme Court: class actions can’t be brought back time after time

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]

“Split up the Ninth Circuit—but Not Because It’s Liberal”

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.”

September 6 roundup