- So many private actors, from Michael Bloomberg on down, helped steer New York AG office to sue Exxon [John Solomon, The Hill; Tom Stebbins, Crain’s New York Business; Francis Menton, RealClearEnergy; earlier here, here, here, here, etc. ] “Whatever the merits of the plaintiffs’ policy objectives, their campaign to circumvent the political branches poses a serious threat to the rule of law and the constitutional principle of separation of powers.” [Jim Huffman, Quillette] “Emails Show Law Firm Pitched San Francisco on Idea of Suing Energy Producers” [Todd Shepherd, Free Beacon]
- Supreme Court heard oral argument last month on the dusky gopher frog habitat case, Weyerhaeuser v. U.S. Fish & Wildlife Service [Faimon Roberts, The Advocate; Rick Hills, PrawfsBlawg; earlier here and here]
- High court has ordered reargument on cemetery-trespass takings case Knick v. Township of Scott, Pennsylvania [Gideon Kanner; earlier here, here, here, and here; Ilya Somin and more and yet more on what’s at stake]
- Reduction or no, damage award against Monsanto in Roundup/glyphosate case is likely headed to appeal [Helen Christophi, Courthouse News and more, earlier]
- Behind push for European regulatory crackdown on cadmium levels in fertilizer, “a Russian fertilizer giant that has ties to the Kremlin” [Matt Apuzzo, New York Times]
- “No, LaCroix Isn’t Poisoning You Like You’re A Giant Cockroach” [Christie Aschwanden, Five Thirty-Eight, earlier] There’s Drano in your eye drops, and it’s okay to relax about that [Josh Bloom, ACSH]
Collins v. Virginia (5/29/18)
No vehicle search
In curtilage of a home
Without a warrant https://t.co/jNJZjcOZ0F
— Supreme Court Haiku (@SupremeHaiku) May 29, 2018
Stop solo arbitration
If parties agreedhttps://t.co/G6jq2VzVfv
— Supreme Court Haiku (@SupremeHaiku) May 21, 2018
Cell-site records grab
Is a Fourth Amendment Search
Likely need warranthttps://t.co/Jc92MkhjRX
— Supreme Court Haiku (@SupremeHaiku) June 22, 2018
Now out: Supreme Court Haiku paperback makes a perfect fun gift for your literary or contemplative lawyer friend.
“Mr. Frank [former Overlawyered blogger Ted Frank] argued his own case on Wednesday, a rarity in the Supreme Court, and he exhibited comprehensive knowledge of the law and an only occasionally halting style.” [Adam Liptak, New York Times] The transcript of oral argument, in which several Justices expressed doubt that the lower court had adequately pinned down standing issues, is here. More on Frank v. Gaos and the cy pres issues it raises: Richard Wolf/USA Today, Daniel Fisher, Jim Copland, SCOTUSBlog, Federalist Society SCOTUSBrief video; earlier here, etc.
Retired Justice Sandra Day O’Connor has released a letter to the public about her declining health. O’Connor is rightly admired for her inspiring life story and unswerving loyalty to the highest civic principles as well as the ideals of the judiciary. Even at this difficult moment of her life, as the letter shows, she is intent on advancing the res publica.
That O’Connor was the swing Justice of her day did not mean that her role on the Court came down to trimming or compromise. Together with fellow Arizonan Rehnquist, no one was more central in the Court’s reinvigoration of federalism, drawing on her record as the only Justice of our era with extensive service in a state legislature. She has led public discussion in the right direction on issues ranging from professional responsibility and race and redistricting to judicial elections.
And as I noted in 2005, if a single jurist deserves our thanks for helping turn back what had seemed like an irresistible trend toward ever more litigiousness in the civil justice system, it is she. “More vocally than any of her present colleagues, Justice O’Connor sounded the alarm against what she’s termed ‘the increasing, and on many levels frightening, overlegalization of everyday life in our country today.'” Her leading role on such issues as due process review of punitive damages reflected that view. For that, as well as for her notice of my work along the way, count me among the grateful.
- “The Supreme Court should…reaffirm that the Constitution’s prohibition against ex post facto lawmaking forbids states from skirting constitutional scrutiny by simply labeling penalties as ‘civil'” [Ilya Shapiro and Nathan Harvey on Cato certiorari brief in Bethea v. North Carolina]
- Interesting: arguments that might work for progressive litigation outcomes in a more conservative Supreme Court [Daniel Hemel, Take Care]
- Notable cert grants: continued viability of Illinois Brick indirect purchaser doctrine [Cory Andrews, WLF on Apple v. Pepper iPhone antitrust litigation] Arbitration returns in two cases on class arbitration [Steptoe on Lamps Plus v. Varella] and delegation of arbitrability [Peter Phillips on Henry Schein Inc. v. Archer and White Sales Inc.] Court will revisit retaliatory-arrest First Amendment issue [Eugene Volokh on Nieves v. Bartlett, last year’s case]
- Gundy v. U.S., on whether Congress can delegate to the Attorney General the range of punishable conduct under the sex offender registry law SORNA, might revive vitality of non-delegation doctrine with far-reaching consequences [Trevor Burrus and Reilly Stephens on Cato brief; Damon Root, Reason; Matthew Cavedon and Jonathan Thomas Skrmetti, Federalist Society] Law authorizing Homeland Security secretary to waive other laws to build border wall delegates too much legislative power to executive branch [Ilya Shapiro on Cato cert amicus on non-delegation doctrine in Animal Legal Defense Fund v. Department of Homeland Security]
- This is really something: argument that maybe it’s unconstitutional to have too conservative a Supreme Court [David Orentlicher, PrawfsBlawg]
- High court should review whether California state commission can force grape growers to pay for industry ads [Ilya Shapiro and Michael Finch on Cato amicus seeking cert in Delano Farms v. California Table Grape Commission]
- Bayer seen as likely to get new trial on punitive-damages side of glyphosate/Roundup loss [Jim Christie and Ludwig Burger, Reuters, earlier]
- Supreme Court declines to review California judgment finding that long-ago advertising of lead paint created public nuisance for which makers are now financially liable [Greg Stohr/Bloomberg, Donald Kochan/Federalist Society, John Sammon/NorCal Record]
- When if ever can you get into federal court with your takings claim? Oral argument in the Knick v. Township of Scott case [Miriam Seifter/SCOTUSBlog, Gideon Kanner, Robert Thomas/Inverse Condemnation first, second, third, fourth posts]
- “Stop trying to get workers out of their cars” [Robert Poole, Jr./Reason]
- “U.S. Supreme Court Refuses to Halt Teenagers’ Climate Lawsuit” [Greg Stohr/Bloomberg] “The European Court of Justice has recently ruled that ten private citizens, from Portugal, Germany, France, Italy, Romania, Kenya, Sweden and Fiji can sue the European Union for negligence in its inaction on climate change.” [Theodore Dalrymple, Law and Liberty]
- “Trump’s EPA is having a hard time in federal court” [Jonathan Adler]
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.
“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]
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:
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.
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).