And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:

It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.

In those situations, shouldn’t you have a clear and express rule?

Justice Sotomayor on administrative law’s “stacked deck” is a post from Overlawyered - Chronicling the high cost of our legal system

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]

Supreme Court: class actions can’t be brought back time after time is a post from Overlawyered - Chronicling the high cost of our legal system

Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.

To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).

Supreme Court on racial preferences, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system

I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).

Roberts concur in Schuette: Not out of touch to conclude racial preferences may themselves have debilitating effect #SCOTUS

— Kimberly Robinson (@KimberlyRobinsn) April 22, 2014

SCOTUS, 6-2, in Schuette: Constitution permits Michigan to decline to engage in discrimination [via @LIICornell] http://t.co/AfxwIRhPy0

— Walter Olson (@walterolson) April 22, 2014

"[In a] jurisprudential twilight zone, we face a frighteningly bizarre question. Does the 14 Amend forbid what its txt requires?" #schuette

— Brian B. Bell (@BrianBBell) April 22, 2014

Scalia concurrence calls for frankly overturning, not limiting, bad Hunter/Seattle line of "political process" cases http://t.co/tRbP5ExBx3

— Walter Olson (@walterolson) April 22, 2014

Scalia rips "noxious fiction that, knowing only a person’s color/ethnicity, we can be sure he has a predetermined set of policy 'interests'"

— Walter Olson (@walterolson) April 22, 2014

Scalia: Hunter/Seattle case line "insists that only those political-process alterations that burden racial minorities deny equal protection"

— Walter Olson (@walterolson) April 22, 2014

Scalia does not display hushed reverence toward Carolene Products: "dissent trots out the old saw, derived from dictum in a footnote."

— Walter Olson (@walterolson) April 22, 2014

Scalia: Hunter-Seattle case line also clashes with Holt Civic Club line of SCOTUS cases letting states decentralize power as they please

— Walter Olson (@walterolson) April 22, 2014

What was the Coalition to Defend Affirmative Action thinking? [Stuart Benjamin, Volokh] http://t.co/gK7nX1qpg4

— Walter Olson (@walterolson) April 22, 2014

Sotomayor dissent doubles down on Hunter/Seattle "political process" fallacy, compares MI affirm-act bar to vote ban http://t.co/mfFUwcTNDr

— Walter Olson (@walterolson) April 22, 2014

Sotomayor says MI voters "changed rules in middle of game". What later stage should they've waited for to make the timing legit in her view?

— Walter Olson (@walterolson) April 22, 2014

Sotomayor: "MI’s Constitution has only rarely been amended thru the initiative process. Between 1914 & 2000… only 20 have passed." Only?

— Walter Olson (@walterolson) April 22, 2014

Where Scalia and Sotomayor agree is that the plurality chose to limit Hunter-Seattle by contorting Court's earlier reading of them.

— Walter Olson (@walterolson) April 22, 2014

Sotomayor mantra "Race matters" likely to thrill some readers, but it's… imprecise (all 9 Justices agree race matters, disagree on how)

— Walter Olson (@walterolson) April 22, 2014

Plurality cites 1 of my least fave SCOTUS cases, Reitman v. Mulkey ('67): Calif. voters can't bar "fair-housing" laws http://t.co/kYGDle1eNb

— Walter Olson (@walterolson) April 22, 2014

Plurality: unchecked logic of Hunter-Seattle cases would open every law to EPC/racial impact challenge. To some on Left, feature not bug?

— Walter Olson (@walterolson) April 22, 2014

More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.

Schuette v. Coalition, in tweets is a post from Overlawyered - Chronicling the high cost of our legal system

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

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

P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.

SCOTUS, 6-2: vaccine suits preempted is a post from Overlawyered - Chronicling the high cost of our legal system

• Crude for sure: Law.com runs highlights of the tapes of American lawyers stage-managing the Ecuador-Chevron suit [Corporate Counsel, ShopFloor]
• Why such broad gag orders in Kansas pain-doc advocacy case? [Jacob Sullum, Reason; Adam Liptak, NYT]
• Spectacular fall of lawyer Adorno in Miami fire fee case [ABA Journal, PoL, earlier]
• Fiscal 2010 saw biggest increase in regulatory burdens placed on US economy since measurements began [Heritage]
• Watch for nonstandard definitions of “rights”: “Unions Fear Rollback of Rights Under Republicans” [NYT]
• Marijuana, freedom and the California ballot [David Boaz, Cato at Liberty] Alas, text of Proposition 19 also contains “antidiscrimination” provisions that restrict private liberty [David Henderson]
• New papers from U.S. Chamber’s Institute for Legal Reform unveiled at last week’s Legal Reform Summit: ways to fix the Foreign Corrupt Practices Act (FCPA) (more on FCPA from Nathan Burney via Greenfield); Beisner-Miller-Schwartz on cy pres in class actions, via CCAF and Trask; and a new paper on asbestos claiming in Madison County, Illinois;
• Will Supreme Court clients be as keen on hiring Tribe after revelation of his letter trashing Sotomayor? [Whelan, NRO]

November 2 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“I had a lot of opponents, but I never had any supporters like that.” is a post from Overlawyered - Chronicling the high cost of our legal system

July 16 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

On the radio is a post from Overlawyered - Chronicling the high cost of our legal system