Posts Tagged ‘Supreme Court’

Environment roundup

Ted Frank to argue cy pres at the Supreme Court

Congratulations to Ted Frank, profiled Oct. 15 by Adam Liptak at the New York Times for arguing his own case (Frank v. Gaos, on class action settlements) before the U.S. Supreme Court. The article does not mention one of Ted’s most salient public roles, namely co-blogging for years as my most inspired recruit at Overlawyered and at Point of Law.

Frank v. Gaos is a challenge to the cy pres elements of a privacy class action against Google [Federalist Society podcast with Ted, NLJ via CEI]. Ilya Shapiro at Cato (which has filed an amicus brief) describes some of the factual background:

Attorneys’ fees of $2.125 million were awarded out of the settlement fund, amounting to 25 percent of the fund and more than double the amount estimated based on class counsel’s actual hours worked.

But no class members other than the named plaintiffs received any money! Instead, the remainder of the settlement fund was awarded to six organizations that “promote public awareness and education, and/or…support research, development, and initiatives, related to protecting privacy on the Internet.” Three of the recipients were alma maters of class counsel.

This diversion of settlement money from the victims to causes chosen by the lawyers is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

James Beck at Drug and Device Law writes that the settlement in question “features just about everything we don’t like about cy pres.” Quoting:

  • Excessive counsel fees – class counsel stands to walk away with fully 38% of the settlement as fees. 869 F.3d at 747.
  • Lack of classwide recovery – the court declared the entire settlement “non-distributable” because, even without opposition, neither the class members nor their damages could be determined. Id. at 742.
  • Excessive cy pres – nothing is more excessive than 100% ? six uninjured charities took 100% of what class counsel left behind, and the 129 million supposedly injured class members took nothing. Id. at 743.
  • Rampant conflict of interest? Three of the charities were law schools – and they all had ties to counsel in the case.
    Litigation industry self-perpetuation – cy pres recipients were expected solicit more lawsuits by “educat[ing]” the public and “publiciz[ing]” privacy issues. Id. at 746-47.

Oral argument before the Court will be held Oct. 31.

“Packing the Supreme Court Is a Terrible Idea”

“Democrats paid a political cost for decades after F.D.R. tried it in the 1930s. They probably would again.” [Julian E. Zelizer, New York Times]

Some writings on the left applauding or backing the idea: Ian Samuel, Guardian; E.J. Dionne, Washington Post; Mehdi Hasan/The Intercept; Jed Shugerman; Michael Klarman, Take Care Blog. Charlie Savage at the New York Times rounds up more pro and con. And as Josh Blackman noted in April 2017, similar ideas were already floating around then; see also Mark Tushnet later last year.

Critics of the idea: Megan McArdle (recalling “Impeach Earl Warren” billboards), Charles Cooke (“fringe fantasy”), Adam White, Ilya Somin. A constitutional amendment to prevent packing? [Jim Lindgren, Ilya Somin]

18,000 Facebook shares later: a tale of legal misinformation

How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:

screen capture of Facebook post
Let’s take a look at its errors, or at least the first four biggies:

1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”

2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*

3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.

4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.

And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.

Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.

* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.

Gamble v. U.S.: conspiracy theory edition

Ken at Popehat has an explainer on how the case of Gamble v. U.S. before the Supreme Court, on the operation of the dual-sovereignty exception to double jeopardy protection, is 1) not the subject of some fiendish plot to give Trump pardons universal effect by way of a Kavanaugh fifth vote; 2) not a conventional left-right issue either, Ruth Ginsburg and Clarence Thomas having joined in an opinion questioning the current doctrine. (Cato has joined in an amicus brief with Brianne Gorod of the left-leaning Constitutional Accountability Center to support the Ginsburg-Thomas position as more consistent with both originalism and civil liberties.) Earlier here (cert stage of Gamble) and here (similar Tyler case).

Previews of the new Supreme Court term (and backward looks)

Erin Murphy at the Cato Supreme Court Review looks at what are likely to be some of the big cases of the next term. The Supreme Court Institute at Georgetown Law has its own preview, while Washington Legal Foundation has a webinar with John Yoo, Shay Dvoretzky, Beth Brinkmann, and Thomas Goldstein moderating, as does the Federalist Society with John Adams, Tom Goldstein, Jennifer Mascott, Elizabeth Papez, and Pete Williams as moderator.

For a broad look back at the 2017-18 term, check out the introductory essays by Roger Pilon and Ilya Shapiro at the Cato Supreme Court Review. And the Federalist Society has posted Miguel Estrada’s summing up of the last term.

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

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).

New: Cato Supreme Court Review (including me on gerrymandering and the Constitution)

On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.

The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.

FOREWORD AND INTRODUCTION

The Battle for the Court: Politics vs. Principles by Roger Pilon
Introduction By Ilya Shapiro

ANNUAL KENNETH B. SIMON LECTURE

The Administrative Threat to Civil Liberties by Philip Hamburger

IMMIGRATION AND NATIONAL SECURITY

The Travel Bans by Josh Blackman

POLITICAL GERRYMANDERING

The Ghost Ship of Gerrymandering Law by Walter Olson

THE CRIMINAL LAW

Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight

Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan

THE FIRST AMENDMENT AND THE CULTURE WARS

Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg

To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME by David Forte

NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman

Regulation of Political Apparel in Polling Places: Why the Supreme Court’s Mansky Opinion Did Not Go Far Enough by Rodney A. Smolla

FEDERALISM AND GOVERNMENT STRUCTURE

Betting on Federalism: Murphy v. NCAA and the Future of Sports Gambling by Mark Brnovich

Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman

“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott

NEXT YEAR

Looking Ahead: October Term 2018 by Erin E. Murphy

Kavanaugh hearings roundup

The hearings for Supreme Court nominee Brett Kavanaugh have wrapped up:

  • Ilya Somin on the nominee’s view of executive power;
  • “The attacks on originalism during the Gorsuch hearings were seen as failures—in the sense that they failed to persuasively portray originalism as outside the mainstream. Thus they were not widely repeated during the Kavanaugh hearings… ” [Michael Ramsey, Originalism Blog]
  • Sen. Kamala Harris (D-Calif.) took a quote in which Kavanaugh summarized the positions taken by litigants in a lawsuit, snipped off his “But they said” wording introducing the summary, and represented the remainder as his own position. Others followed [PolitiFact; Glenn Kessler, Washington Post “Fact Checker” (four Pinocchios); our earlier encounters with Harris on truancy laws and the Moonlight Fire case, and see also Elizabeth Nolan Brown]
  • Some critics charged Kavanaugh with not answering truthfully in several lines of questioning; David Lat responds with explanations regarding Judge Bill Pryor’s nomination, MemoGate, and NSA surveillance. Also, when you’ve lost Vox
  • I joined Newell Normand on WWL for a brief recounting of the week’s action and a look at what lies ahead (most likely, confirmation before month’s end);
  • Another overview of the four days: “Arguing about documents rather than Kavanaugh’s qualifications or his judicial philosophy has a political purpose.” [John McGinnis]

Wage and hour roundup