Archive for the ‘Supreme Court’ Category
Stanford Law Review, 64.1 (2012)
posted by Stanford Law Review
 |
Volume 64 • Issue 1 • January 2012 |
|
Articles The Ghost That Slayed the Mandate State Sovereign Standing: Establishing Official Islam? Lobbying, Rent-Seeking, and the Constitution Note |
February 14, 2012 at 1:30 pm
Posted in: Civil Procedure, Constitutional Law, Courts, Law Rev (Stanford), Law Rev Contents, Politics, Second Amendment, Supreme Court
Print This Post
No Comments
Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue
posted by Stanford Law Review
Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:
Essays
- A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57);
- Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63);
- Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70);
- Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75);
- Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and
- The Right to Be Forgotten by Jeffrey Rosen (64 Stan. L. Rev. Online 88).
The text of Chief Judge Alex Kozinski’s keynote is forthcoming.
February 13, 2012 at 1:04 pm
Posted in: Law Rev (Stanford), Law Rev Contents, Law School, Law School (Scholarship), Media Law, Military Law, Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security), Social Network Websites, Supreme Court, Technology, Tort Law
Print This Post
No Comments
Can’t the Supreme Court Just Say No to Cameras?
posted by Dave Hoffman
It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:
‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”
Two questions.
(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,
(2) What ifthe Supreme Court just says no? The Marshall of the court reports to the Chief, not to the President or the Congress. What is the Coult were simply to decide, as a body, that it didn’t feel bound by another branch’s wishes on how to conduct its proceedings? Obviously, this would never actually happen. But imagine a different case, where the Congress prescribed wig-wearing? Or how long arguments would last? Or brief length or content? I recall a Larry Tribe con law exam in which the Congress wrote a law the required the court to decide its constitutionality in a matter of days. That struck me as unlikely to survive scrutiny. Similarly here, there’s a plausible separation of powers argument that the Congress doesn’t have the right to tell the Court how to run its house. That’s precisely what Mike Dorf argued in this column, and it’s surprising to me that so few mainstream journalists have picked up the objection. (But see this Scotusblog discussion.) Basically, if I were the Court and I didn’t want to be on TV, I’d consider telling Congress to go pound sand. They don’t have an army either.
February 10, 2012 at 1:40 pm
Posted in: Constitutional Law, Supreme Court
Print This Post
3 Comments
Rufus Peckham
posted by Gerard Magliocca
In doing some research on Justice Rufus Peckham (the author of Lochner), I 
came across two fascinating facts that I didn’t know. The first is that his older brother, Wheeler, was nominated to the Supreme Court in 1894 (Rufus was named in 1895) but was unable to win Senate confirmation. We’ve had brothers on the same federal court–Richard and Morris Arnold in the Eighth Circuit–but never on the Supreme Court. The second is that he is the last Justice nominated by a Democratic President and confirmed by a Republican Senate. When you think about that, it’s pretty astounding–not since 1895! (Indeed, President Cleveland is the only Democratic President who picked Justices when Republicans controlled the Senate.)
January 31, 2012 at 3:34 pm
Posted in: Supreme Court, Uncategorized
Print This Post
3 Comments
Landscape of the Amici Supporting Florida’s Medicaid Brief
posted by Nicole Huberfeld
Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus: “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include: The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….” Notable for a term that has the potential to render a few blockbuster cases. (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.)
It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology. In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:
- Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
- Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights. (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
- Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example). Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports. Justice Kennedy’s concurrences and dissents are well represented.
- Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements).
- An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.)
- Hyperbolic analogies (such as characterizing states as drug addicts).
A couple of additional thoughts come to mind in reading the amicus briefs:
- State dependence on federal funding speaks to state behavior, not federal.
- Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
- The Court has no standard by which to judge whether the federal government offers too much money to states. Too much money relative to what? If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly. The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states.
- The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.
Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case. The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici. An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate. Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.
January 27, 2012 at 12:35 am
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
4 Comments
Stanford Law Review Online: The 2011 Basketball Lockout
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by William B. Gould IV entitled The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely. Gould, a former chairman of the National Labor Relations Board, provides a succinct postmortem on the 2011 lockout:
The backdrop for the 2011 negotiations was the economic weapon once regarded as a dirty word in the lexicon of American labor-management relations—the lockout. This economic weaponry, endorsed by the Supreme Court since 1965, became the flavor of the two prior decades; baseball flirted with it in 1990, basketball in 1995 and 1999. One of hockey’s lockouts even resulted in the cancellation of the entire 2004-05 season. The lockout again was utilized in 2011 by recently peaceable football as well as by basketball. The owners gravitated towards the lockout tactic because in the event of strike (protesting changes in conditions in employment, which proved ineffective), players who crossed the union picket line could play and still sue in antitrust simultaneously. The lockout put more pressure on the players to settle. . . . The union now was represented by David Boies, who had only a few months before represented the NFL and successfully deprived that union of its only effective antitrust remedy—i.e., an injunction against the lockout, which would have required the owners to open the camps in early summer. Thus the basketball union now would not pursue the injunction remedy, notwithstanding the persuasiveness of Judge Bye’s dissenting opinion in the football case. Of course, Boies would have met himself coming around the corner if he argued for it in basketball.
He concludes:
Nonetheless, even though the union was stripped of its most effective antitrust remedy, litigation seems to have moved the parties together. It most certainly called the NBA’s bluff, in that the league’s regressive or inferior option was quickly forgotten. True, the NBA obtained givebacks that are estimated to be worth more than $300 million. Not only did it win on revenue sharing with the players—the players will possess between 49% and 51% as opposed to 57%—but more stringent luxury tax penalties for violators also have been instituted. As National Basketball Players Association Executive Director Billy Hunter said, the latter element constitutes the “harshest element of the new system.” At the same time, guaranteed contracts were preserved, restricted free agents will benefit from the reduction of the so-called “match period” when teams may match competing offers from seven to three days, which may encourage bidding on these players. The cap remains soft in that the so-called incumbent “Bird” players (named for Celtics superstar Larry Bird) may exceed the cap and have more expansive increases and lengths of contracts than other players. A so-called “amnesty” for bad contracts was permitted, in that even though the contracts must be paid, a player on each club may be waived and his salary not counted towards his team’s cap. What appeared to be a rout of the players in November emerged as a reasonable face-saving compromise.
Read the full article, The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely by William B. Gould IV, at the Stanford Law Review Online.
Note: Updated quotation.
January 25, 2012 at 1:34 pm
Tags: Antitrust, labor law, lockout, NBA, professional sports, strike, unions
Posted in: Antitrust, Current Events, Law Rev (Stanford), Supreme Court
Print This Post
No Comments
Why Scalia is Right in Jones: Magic Places and One-Way Ratchets
posted by Derek Bambauer
The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »
January 24, 2012 at 12:05 pm
Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology
Print This Post
9 Comments
United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5.
posted by Priscilla Smith
By Priscilla Smith, Nabiha Syed & Albert Wong, Information Society Project at Yale Law School
There was exciting news from the Supreme Court yesterday. By a rare 9-0 vote, in United States v. Jones, No. 10-1259, the Court held that the Government should have obtained a warrant before placing a GPS surveillance device on the defendant’s car and monitoring his movements. This result was not completely unexpected, especially considering the Justices’ interest at oral argument in the Government’s position that GPS surveillance technology could be used without a warrant to track the movements of any car — even the Justices’ own cars — for an unlimited period of time. The Government argued — unsuccessfully — that this result was compelled because citizens have no privacy interests in their public movements.
Of particular note, the three opinions in the case and the unusual line-up make for a broader ruling than is apparent at the outset. The most narrow rule comes from the Court’s opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and — wait for it — Sotomayor, holding that that “the Government’s installation of a GPS device on a target’s vehicle,2 and its use of that device to monitor the vehicle’s movements, constitutes a “search.” Slip op. at 3. Scalia notes that the Fourth Amendment protects the “right of the people to be secure in their . . . effects,” and it “is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” Id. at 3. Ergo, he holds the installation done with the intent to “use … th[e] device to monitor the vehicle’s movements” was a search. Id. at 3. He describes the action at issue, saying “[t]he Government physically occupied private property for the purpose of obtaining information.” He holds that since this form of physical trespass and monitoring would have been a search within the meaning of the Fourth Amendment at the time it was adopted, it is a search now. Hello, original application guy.
On first glance, it seems that Scalia might be returning to old interpretations of the Fourth Amendment that required a physical trespass to have occurred before an action could be considered a search. But what Scalia is actually doing here is defining the Court’s task, which is “at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” and because it would have, it is a search now. Just because in 1967 Katz said that the Fourth Amendment protects more than physical trespass, doesn’t mean that the Fourth Amendment doesn’t protect physical trespass. See slip op. at 6-7 (noting Katz did not erode the principle that a search occurs where the Government “does engage in physical intrusion of a constitutionally protected area in order to obtain information.”) (emphasis in original). So Scalia establishes and emphasizes a threshold for determining when a search has occurred — a threshold that is not comprehensive, but sufficient to resolve the issue at hand.
And thus Scalia declines to go further and consider what would happen if, hypothetically, there was no physical trespass. He does hold open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 11. Simple enough. Why decide the harder issue with all its accompanying “vexing problems” that would arise in a case involving electronic surveillance without an accompanying trespass? Scalia argues that there is no reason to “rush forward” to resolve them now. Slip op. at 12. Put aside for a minute that he encouraged the Court in United States v. Kyllo, a case holding that the use of heat-seeking technology required a warrant, to adopt rules that “take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U.S. at 37.
But Scalia has a problem. As he points out, in its opinion in United States v. Knotts, the Court upheld the use of beeper technology to track a target’s movements, holding there was no invasion of privacy. He distinguishes Knotts from this case because Knotts did not involve physical trespass. The beeper there was placed inside a container with consent of the then-owner of the container, and only then was the container placed in the driver’s car. Moreover, Knotts didn’t challenge the installation. Right. But the Court didn’t decide there was no search in Knotts based on an absence of a physical trespass; the Court decided the case holding there was no invasion of privacy. So shouldn’t Scalia explain to us why he holds open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, [like they did in Knotts] is an unconstitutional invasion of privacy?” Id. at 11. Saying that GPS is a different technology, as he does in a footnote, is not enough. Doesn’t he owe us an explanation of why Knotts doesn’t preclude that possibility, as the Government so vehemently argued it did and the Ninth Circuit in a similar case agreed? See Pineda-Moreno v. United States.
Of course he does — or so says Justice Alito, with Justices Ginsburg, Breyer and Kagan joining. See Alito’s concurrence, slip op. at 13. In fact, not only did Alito think the Court should reach the Katz expectation of privacy test, he didn’t buy the physical trespass holding at all, and lists its many flaws. Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id. Now, Justice Alito recognizes the “degree of circularity” inherent in Katz’s expectation of privacy test — i.e., the problem that, if read literally, the test would permit a situation in which the government takes away your privacy so that one no longer has an“expectation” of it — and in so doing, one no longer has a constitutionally protected interest in it. Hello, 1984. Unfortunately, though, his concurrence does nothing to address, and instead relies exactly on, that circular part of it — the intrusion you would or would not have anticipated. The concurrence is also remarkably skimpy in its explication of why exactly the surveillance is “intrusive” — you know, the point that is the actual crux of the case.
The only Justice who doesn’t avoid the issues is Justice Sotomayor. Although she joins the narrow majority opinion because she buys Scalia’s argument that the physical trespass here suffices to decide the case, she writes separately to make clear that “physical intrusion is now unnecessary to many forms of surveillance,” her slip op. at 2, a statement that Scalia certainly does not deny.
Moreover, and making this a much broader ruling than it appears on first glance, unlike Scalia, Sotomayor explains the distinction between Jones and Knotts. She agrees with the Alito Four that “’longer term GPS monitoring in investigation of most offenses impinges on expectations of privacy.’” Sotomayor concurrence at 3, quoting Alito concurrence at 13. Rather than relying on whether citizens “anticipate” invasions of their privacy, her opinion reflects the concerns of the D.C. Circuit, New York Court of Appeals, and C.J. Kozinski writing in dissent from denial of rehearing en banc in a similar case in the Ninth Circuit, that the information collected by GPS monitoring generates a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 3. (In fact, unless we missed something, she appears to be the only one who cites to Chief Judge Kozinski’s dissenting opinion in the Pineda-Moreno case; no one seems to cite the DC Circuit opinion, scared off perhaps by some folks’ misplaced railing against its “mosaic” language). She further discusses the concerns raised in a brief filed by some of us at the ISP on behalf of a group of privacy scholars that GPS surveillance, as she says, “evades the ordinary checks that constrain abusive law enforcement practices” and is susceptible to abuse, and that awareness of government monitoring chills associational and expressive freedoms. Id. She summarizes:
I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).
Finally, Sotomayor suggests a more fundamental change in the jurisprudence to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” and notes that the rule is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor at 5, questioning the notion at the heart of the rule that “secrecy [is] a prerequisite to privacy.”
The long and the short of it is that by agreeing with the Alito Four that the use of GPS surveillance technology for a prolonged period violates a reasonable expectation of privacy, Sotomayor’s concurrence means that five justices agree to veer away from the inside/outside distinction relied upon by the Government. It seems that we may have some privacy interests in our public movements after all.
January 24, 2012 at 11:39 am
Posted in: Anonymity, Constitutional Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Uncategorized
Print This Post
2 Comments
Getting the Facts Right
posted by Nicole Huberfeld
For those of you following the Medicaid expansion issue before the Court: Sara Rosenbaum and Katherine Hayes, experts on the Medicaid program and health policy at GW, have posted a thoughtful response on the Health Affairs blog to the states’ misleading discription of the Medicaid program (which I also mentioned in my initial impressions of the states’ merits brief). Briefs supporting the states’ coercion position were just filed, and I will post initial impressions of the amici soon.
January 19, 2012 at 11:37 am
Tags: federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
No Comments
Initial impressions of the states’ brief in Fl. v. HHS
posted by Nicole Huberfeld
Is the sky falling? According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes. In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit. The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high. Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds. Again, these arguments are not new.
One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18). The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid. The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage. The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture). Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.
Medicaid’s history is skewed by the brief more greatly than it was at lower court levels. For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program. The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program. Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations. Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).
Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending. Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional. In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).
Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion. The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.
January 11, 2012 at 12:36 am
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
One Comment
Interesting Facts You Learn From Reading Supreme Court Opinions
posted by Dave Hoffman
“‘Golds’ are permanent or removable mouth jewelry, also referred to as ‘grills.’ See Mouth Jewelry Wearers Love Gleam of the Grill, South Florida Sun-Sentinel, Feb. 4, 2007, p. 5, 2007 WLNR 2187080. See also A. Westbrook, Hip Hoptionary 59 (2002) (defining a ‘grill’ as a ‘teeth cover, usually made of gold and diamonds’). -Thomas, J., dissenting in Smith v. Cain.
January 10, 2012 at 11:00 am
Posted in: Supreme Court, Weird
Print This Post
One Comment
The inter-branch turmoil continues
posted by Nicole Huberfeld
After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement. The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates. As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.
Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems). The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause. Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved.
There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued. Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care. In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress). And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight. It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed. This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable. It also helps to explain the sort of underlying tone of confusion at oral arguments. The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.
December 30, 2011 at 3:11 pm
Tags: Constitutional Law, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
2 Comments
The other healthcare case with constitutional implications
posted by Nicole Huberfeld
Another Medicaid case this term also involves constitutional challenges – Douglas v. Independent Living Center of Southern California. That certiorari was granted is notable unto itself, as no circuit split existed, the Acting Solicitor General had recommended that the Court deny the petition, and the Court does not seem to relish hearing healthcare cases. The conflict in Douglas is whether California violated the Medicaid Act by enacting 10% reimbursement rate reductions, but this is not the question before the Court. The Court will consider whether the plaintiffs (a group of Medicaid providers and enrollees) may privately enforce the Medicaid Act against the state by claiming the state has violated the Supremacy Clause. Depending upon the timing of the opinion, Douglas may give us hints as to how the Court will decide Florida v. HHS, even though the United States has taken notably different positions in the two cases (about which I have written more here.)
Medicaid was intended to mainstream the poor into American medicine. The Medicaid Act thus informs states that they must pay healthcare providers “sufficient[ly]” to ensure the same access to medicine for Medicaid enrollees as others in the geographic region enjoy. This “Equal Access” provision is a pillar of Medicaid, and it has been a source of litigation against states that pay providers too little. In fact, before Gonzaga, lower federal courts were in agreement that the Equal Access provision was enforceable via section 1983. Through this litigation, the circuits developed varying methods for deciding sufficiency of payment, as the Centers for Medicare and Medicaid Services (CMS) has not enforced the Equal Access provision vigorously against the states. Despite the lack of agency action, ”sufficiency” is key to Medicaid’s success; if states do not pay enough for the medical services they buy, Medicaid enrollees will be forced into substandard care or will not be able to find caregivers at all, and the program would be undermined. Due to Gonzaga, and because CMS infamously does not monitor the states, Medicaid providers and enrollees have sought to enjoin states from violating the Medicaid Act under the Supremacy Clause.
California argued that the Medicaid Act does not include private actions, thus the plaintiffs could not seek an injunction because the statute fails to meet the “unambiguous conditions” element of the Dole test for conditional spending. This argument speaks to clear statement advocates on the Court (such as Justices Alito, Scalia, and Thomas), because it claims that states do not have clear notice of Medicaid enforcement actions in federal court. To the surprise of many, the United States’ amicus brief not only supported California but also urged that no private right of action exists for beneficiaries of federal spending programs (generally) to enforce federal standards against states. The Acting Solicitor General’s brief thus took a much bolder position than was expected. Remarkably, members of Congress and ex-administrators of the Department of Health and Human Services strongly disagreed with the SG’s position. In fact, the ex-administrators, which represent both sides of the aisle, insist that CMS relies heavily on private enforcement to police the states.
Douglas may lead the Court to articulate a default rule that ends implied private rights of action under the Supremacy Clause, but Medicaid is a flawed vehicle for such a sweeping, federalism-based decision. [More after the jump.]
December 21, 2011 at 12:15 pm
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
No Comments
An additional thought on coercion
posted by Nicole Huberfeld
Recently I wrote about the coercion question posed by Florida et al. in the PPACA litigation. I have a quick follow up thought: I wonder if those advocating a more robust read of coercion recognize that their position could backfire if the goal is broadening federalism protections. An expanded coercion doctrine ostensibly would introduce the possibility of judicially enforcing states’ rights against the congressional power to spend. But the states should not assume that they are the only parties that could enforce federalism principles. Just last term in Bond v. United States, Justice Kennedy wrote that individuals can have standing to enforce the principles of the Tenth Amendment against the federal government because federalism protects not just the states but also individuals. In Bond, the conclusion was foreseeable, as a criminal defendant should be able to challenge the constitutionality of the statute under which she is charged. But the idea is muddied in a conditional spending program, wherein individual beneficiaries are often at odds with the state and contest its compliance with the federal government’s statutory conditions.
States have sought to prevent private enforcement of conditional spending statutes, and they have been more and more successful in closing the courthouse doors. For example, the Court has limited implied rights of action as well as actions under civil rights law 42 U.S.C. § 1983, decisions that narrow state exposure in federal court. In fact, this type of question is before the Court now in Douglas v. ILC, which confronts private enforcement of the Medicaid Act against states via the Supremacy Clause.
If the coercion theory is expanded, then private plaintiffs could be reintroduced into the federal courts, the very thing that states have been trying to prevent. And, individuals engaging in coercion analysis may have different goals than states. Further, it is possible that coercion could inaugurate a new theory by which those conditions, and the ways in which they are or are not executed by states, can be challenged by private plaintiffs. So, not only is state coercion by the federal government an inherently sticky question, but it also may not produce results that states desire.
December 14, 2011 at 4:17 pm
Tags: Constitutional Law, federalism, health care
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
No Comments
Jumping ahead to Coercion
posted by Nicole Huberfeld
I had intended to address Douglas next, as it is a nice gateway for discussing Florida v. HHS, but a defense of the coercion argument just published in the New England Journal of Medicine Online inspired me to address the latter first. I will begin by discussing why I think the Court granted the petition for certiorari then turn to the Medicaid coercion question.
The Rehnquist Court excluded the Spending Clause from its federalism revolution inasmuch as that would have meant limiting the power to spend by the Tenth Amendment. When Chief Justice Rehnquist authored South Dakota v. Dole, the evidence is that he believed it was an easy and relatively inconsequential case. For those sane enough not to engage in the reading of tea leaves that is deciphering the spending power, a quick review. Dole articulates typical Rehnquist categories for evaluating the constitutionality of conditions placed on federal spending: the spending must be for the general welfare; the conditions must be clear and unambiguous (as modified by Arlington Central School District Board of Education v. Murphy); the conditions must have a nexus with the federal spending (“germaneness”); and the conditions cannot themselves be unconstitutional. After providing this test, Rehnquist noted that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” No theory or constitutional provision was cited, but the opinion indicated that coercion would depend on the amount of money or percentage of money withheld if the state violates the conditions. It seems that the Court meant that coercion would be a Tenth Amendment, state sovereignty problem. But, Dole also explicitly stated that the Tenth Amendment was not implicated in the bar on unconstitutional conditions. So, while Dole provides the test for conditional spending, it is undertheorized and a bit self-contradictory. Nevertheless, the Rehnquist Court reiterated that the Spending Clause is not limited by the Tenth Amendment in New York v. U.S. and held to that position in subsequent cases, disappointing many who believed spending to be the next front in judicially-enforced federalism.
The Roberts Court has given hints now as to its approach to spending as well as federalism, and members of the Court have signaled interest in revisiting both topics. For example, Justice Kennedy’s concurrence in Comstock stated: “The limits upon the spending power have not been much discussed, but if the relevant standard is parallel to the Commerce Clause cases, then the limits and the analytic approach in those precedents should be respected.” Justice Kennedy also addressed broader federalism concerns in that concurrence, which were given free rein in his opinion for the Court in Bond v. U.S. as well. Likewise, Justice Alito’s opinion in Arlington was written as a spending power decision rather than a limited statutory interpretation, which I have written elsewhere resulted in a narrower clear statement rule for the second element of the Dole test.
Additionally, even though the Court seems to dislike hearing both spending and healthcare cases, it already has heard Douglas this term, so spending, federalism, and Medicaid are fresh in the justices’ minds. And, what could be a better vehicle for considering coercion than the largest grant-in-aid program that also constitutes the second largest portion of states’ budgets? (Education is first.) Further, numerous lower federal courts have attempted to construe coercion, but none have struck down federal legislation under the doctrine, making the issue ripe for the Court’s consideration.
Despite the idea of coercion arising repeatedly in federalism cases over the last thirty-ish years, its contours are unknown. At what point is the money being offered too much? And is the offer really the issue, or is the problem the amount or percent of money a state stands to lose if it does not comply with the conditions? (Dole indicated the latter, as South Dakota was not coerced because it would lose only 5% of its federal highway funding if it refused to comply with the minimum drinking age that the federal government sought to impose.) Can coercion only apply to an existing conditional spending program that a state could not leave because it has become dependent on the program? Or is there some federal program that would offer so much money that no state could turn it down, even at the outset, such that the new program would be coercive? If it is the former, then clear statement rules also need to be revisited, because they seem to assume some kind of regular restatement of the rules of the program to which a state actively agrees. That simply does not occur in a long-standing program like Medicaid, making me think that clear statement rules are almost meaningless in that context. Additionally, states inherently relinquish some sovereignty when they agree to the terms of a cooperative federalism program, highlighting tensions between dual sovereignty and cooperative federalism.
So, what is the upshot for the Medicaid expansion? [more after the jump]
December 9, 2011 at 1:26 pm
Tags: Constitutional Law, Current Events, federalism, health care
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
One Comment
Today’s denial of cert. in Blackstone
posted by Nicole Huberfeld
Many were watching this morning’s conference to see if the petition for certiorari would be granted in Blackstone Medical, Inc. v. U.S. ex rel. Hutcheson, but it was not. The issue in Blackstone was whether a medical device company that paid illegal kickbacks to prescribing physicians could be liable under the False Claims Act (FCA) for causing false claims to be submitted to Medicare. The FCA is the rare statute that is what it sounds like – basically, if you submit claims for federal monies, the claims cannot be false or fraudulent. If they are, the federal government can recover large fines for each false claim as well as treble damages. The statute includes a qui tam relator provision that encourages whistleblowers to come forward with information about false claims; if they are successful, they share in the government’s bounty. The civil FCA has become the DOJ weapon of choice for fighting healthcare fraud, and circuit splits abound regarding the interpretive details of this statute. In part, this is because whistleblowers tend to push the envelope of false claims theory. To wit, in this case, the claim is not “factually false” (which would indicate that the services were not actually provided), it is “legally false,” which means the services are provided as claimed, but another law for which the filer has certified compliance is being violated.
A grant in Blackstone would have been notable, as the Roberts Court has decided five False Claims Act cases in five terms (October Term 2006-2010), as compared to four such decisions in the eleven years of the natural Rehnquist Court, making this potentially the sixth in seven terms. It is hard to say if the Court is hearing so many FCA cases organically, or if something more is afoot. But, the FCA decisions illustrate at least four big picture issues.
First, separation of powers. The Court is having a conversation with Congress that seems to further a clear statement rule project. The Court has consistently read the FCA narrowly, forcing Congress to include the language it wants to see in the statute. Twice Congress has responded, and quickly, by re-expanding the scope of the FCA, and in a third case, PPACA had already addressed the issue. (Seems fraud is one of the few things Congress can agree on these days…) The problem is that such rules are lost on whistleblowers, who dominate FCA prosecutions. Second, the cases seem to support the theory that the Roberts Court is business-friendly, as a glance at the amicus briefs reveals. The problem is that “business friendly” does not necessarily inform meaningfully or even predict outcomes. For instance, the Chamber of Commerce often sides with healthcare providers, and it advocated for narrowing the scope of the FCA in the cases before the Court, which keeps whistleblowers out of court. But in Douglas v. ILC (to which I’ll return in my next post) the Chamber advocated for hospitals, which would keep the courthouse doors open. Third, the five cases reveal a docket clearing exercise that is consistent with the theory that the courthouse doors are being closed by the Roberts Court, irrespective of the business-friendly question. Fourth, the Court’s interpretation of the FCA, and Congress’s response to the Court, will likely facilitate an increase rather than a decrease in the number of whistleblower actions brought under the FCA. PPACA will increase the number of claims flowing through federal healthcare programs, and federal money flowing into the state insurance exchanges will be subject to the FCA too.
So, even if the Court does not grant the petition in the other FCA case on the docket (Amgen, Inc. v. New York), it’s a safe bet the Roberts Court will be telling us more about the FCA soon.
December 5, 2011 at 10:24 pm
Posted in: Constitutional Law, Health Law, Supreme Court
Print This Post
No Comments
Messerschmidt v. Millender: What’s Next, After the Supreme Court Rules?
posted by Kyle Graham
Not Quite Messerschmidt, But You Get The Idea
The United States Supreme Court will hear oral argument tomorrow in Messerschmidt v. Millender. In this § 1983 case, the Court will consider the circumstances in which a law enforcement officer who prepares or executes an overbroad and/or insufficiently particularized search warrant is entitled to qualified immunity from damages.
Orin Kerr has posted an analysis of the case over on SCOTUSblog; I have little to add to his thoughtful commentary. As Professor Kerr appears to, I anticipate that the Supreme Court will find that on the facts before it, the police officers in question are entitled to qualified immunity, and reverse the United States Court of Appeals for the Ninth Circuit.
But what if it doesn’t? The case will return to the district court, and that’s when the really interesting (and under-examined) legal issues will arise. A very large share of the appellate caselaw that involves claims brought under § 1983 concentrates upon whether a defendant or defendants are entitled to qualified immunity. There is a relative dearth of precedent concerning matters such as damages and, especially, causation. On any remand in Messerschmidt, however, possible causation and damages problems with the plaintiffs’ case may loom large, as they did in the last warrant case decided by the Supreme Court, Groh v. Ramirez.
In Groh, as some of you may recall, a law enforcement officer (an ATF agent, to be precise) goofed by failing to list the items to be seized in the search warrant itself (in the space on the warrant reserved for identification of these items, he simply typed in the premises to be searched). These items were identified in the affidavit, however, which also stated probable cause for the search. On these facts, the Groh majority held that qualified immunity was not available to the officer.
Once the case was remanded back to the district court, the United States (Groh was a Bivens case) emphasized that the error in question really wasn’t the cause of significant damages. To understand this argument, recall that in tort law, a plaintiff must show that the defendant’s negligence was a “but for” cause (also known as a “cause-in-fact”) of the plaintiff’s injury. The key word is “negligence,” to be distinguished from “conduct.” The Third Restatement of Torts illustrates this point using a hypothetical driver who hits a pedestrian while driving 57 miles per hour in a 50-mile-per-hour zone. According to the Restatement, if the pedestrian sues the driver for negligence, her claim will falter for lack of causation, unless the driver would not have hit the pedestrian (or would have caused less damage) if he had been driving at the 50-mile-per-hour speed limit. (Significantly, in the Restatement’s ‘non-negligent’ counterfactual, the driver is operating his vehicle at a speed that’s at the very cusp of negligence.)
Similarly, on remand in Groh, after pointing out that conventional tort rules regarding causation apply in § 1983 cases, the United States argued that in a perfect world that resembled what actually happened—except that there was no drafting error with the warrant—a search warrant for the premises still could and would have been issued and executed, in precisely the same way that the flawed warrant was. Therefore, according to the United States, the plaintiff in Groh should receive only nominal damages, since the agent’s error, properly isolated, did not cause any actual damages.
Groh settled prior to trial, so we don’t know how that argument worked out for the United States. Nevertheless, it seems likely that if the Supreme Court affirms the Ninth Circuit in Messerschmidt, the defense will make a similar argument on remand. The principal damage item in Messerschmidt appears to be the alleged emotional distress associated with the officers’ entry. (Here, keep in mind that the warrant was executed at around 5:00 a.m.) As in Groh, the defense will stress that the same entry presumably would have occurred pursuant to a properly tailored warrant, meaning that the plaintiffs’ primary damage item wasn’t really caused by the problem with the warrant.
This argument has its strengths and weaknesses (or at least, limitations), which I will avoid for now. Perhaps the more important point is that while we all focus a great deal on qualified immunity, other elements of a § 1983 cause of action remain precedential terra incognita, or nearly so, as to many of the different types of claims catalyzed by the statute. It takes time to “fill in” the law surrounding a legal theory, and there simply haven’t been enough published decisions regarding many § 1983 theories for this to have occurred.
Moreover, certain attributes of a cause of action tend to be “filled in” faster than others. My suspicion is that but-for causation is typically either the last, or one of the last elements of a claim to develop a substantial body of useful caselaw-created rules. The delay owes to the fact that but-for causation is doubly shielded from appellate review. A jury normally determines the “cut-off” line between negligence (or otherwise improper conduct) and non-negligent behavior; and as the Restatement hypothetical illustrates, it is this cut-off that serves as the baseline for their subsequent causation determination. In effect, an appellate court tasked to review a but-for causation determination by a jury must peer inside a black box that is itself hidden inside another black box. Little wonder, then, that there exist few useful but-for causation guideposts in the caselaw.
December 4, 2011 at 6:02 pm
Posted in: Civil Rights, Criminal Procedure, Supreme Court, Tort Law
Print This Post
2 Comments
The Court, Spending, Federalism, Medicaid, and Other Minor Stuff
posted by Nicole Huberfeld
My thanks to Angel, Dan, and the rest of the regulars at CoOp for the invitation and the introduction. I am delighted to be guest blogging, especially at a time when my fields of interest are overflowing with developments. Everyone has been talking about the Commerce Clause questions raised by the minimum coverage provision of the Patient Protection and Affordable Care Act (“PPACA”). I too have been avidly following this litigation, but because I study (among other things) Medicaid as a vehicle for constitutional change – and that phenomenon is happening right now. The Court will decide two high-profile Medicaid cases this term, each of which has the potential to facilitate major movement in structural constitutional law. Oral arguments were heard in the first case, Douglas v. Independent Living Center of Southern California, on October 3d. The second case, Florida v. HHS, will be heard in the spring.
I try not to assume that folks know a lot about federal healthcare programs with their layer cakes of complexity; to wit, a justice said during oral argument, “Suppose there were a provision in the Medicaid or Medicare Act… I get the two of them confused.” (Ahem.) So, I will begin with a bit of background that I hope will help to illuminate the two cases before the Court. Later posts will explore Douglas and Florida v. HHS and their implications for conditional spending jurisprudence, federalism, and Medicaid itself more directly.
Medicaid is a forty-six year old spending program that provides federal money to the states in exchange for states agreeing to provide particular medical services to the “deserving poor.” Medicaid has been described as a classic example of cooperative federalism, but the program is structured this way for historic rather than philosophical reasons (which I detail in Federalizing Medicaid). States were responsible for welfare programs since our founding, and when they could no longer afford to provide welfare medicine, they asked the federal government for money to help care for the deserving poor. The federal government responded with almost conditionless grants to the states through the Social Security Act of 1935. Over time, the states asked for more money, and the federal government provided it, but each amendment to the SSA included more and broader rules for the federal funds to ensure they were being used properly. Fast forward to 1965 and the passage of Medicare, with Medicaid in tow. While Medicare was grounded philosophically in social insurance (but only for people 65 and older), Medicaid continued the old patterns. Indeed, the elderly convinced Congress not to allow Medicare to be a joint program between the federal government and the states. So, Medicaid is a cooperative federalism partnership between the federal government and the states, but not because it was thoughtfully constructed that way. And, this partnership seems to have fostered more disagreement than cooperation between the federal government and the states.
Why does this matter? A number of reasons. PPACA’s expansion of Medicaid is a major philosophical change in the program because it eliminates the idea of the deserving poor for the first time in our history. But, the tensions between the federal government and the states are very much alive and on display before the Court. Douglas involves a challenge to California’s Medicaid reimbursement rate reductions under the Supremacy Clause, and it raises questions regarding the nature of spending legislation, access to federal courts, private rights of action against the states, and Medicaid’s very aspirations. Florida v. HHS challenges the institutional structure of Medicaid (the federal-state partnership) and thus raises major spending questions and federalism questions, including the ever-elusive idea of “coercion.” The kicker: it has been clear for some time that certain justices were eager to decide these questions.
December 1, 2011 at 12:06 pm
Tags: Constitutional Law, Current Events, health care
Posted in: Constitutional Law, Current Events, Health Law, Supreme Court
Print This Post
One Comment
Pretext, the Rule of Law, and the Good Official
posted by Jeffrey Kahn
Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)
How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials? If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext.
Sometimes we don’t care very much. In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road). Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car. One lesson of this case is that you should always signal before making a turn. Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.” In other words, a green light to pretextual traffic stops.
Sometimes, we care a great deal. In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.” Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.” Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.” The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.
Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law? When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one? My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself. Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands. Pretextualism may be habit-forming and, like cigarettes, unhealthy.
After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action. One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice. Surprisingly, that case foretold and influenced the “easy” Whren case. The other involves a former college football player caught up in the current “War on Terror.” That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.
November 29, 2011 at 3:15 pm
Posted in: Administrative Law, Civil Rights, Constitutional Law, Criminal Procedure, Immigration, Supreme Court, Uncategorized
Print This Post
No Comments
Ok, You Asked For It: A Bit More About Wal-Mart v Dukes
posted by Michael Zimmer
I have been asked why I am so fearful that the Supreme Court’s decision in Wal-Mart v. Dukes foreshadows the demise of systemic theories challenging patterns or practices of discrimination. After all, the case is about class actions. My fear is that, has it done in other areas, the lower courts and the Supreme Court itself will look back and declare that systemic antidiscriminaiton law is as it was described in Wal-Mart. My fear is based on articles by Barry Friedman in the Georgetown Law Review, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1647745, and Margaret Moses’ article, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U. Penn. J. of Const. L. 161, http://papers.ssrn.com/sol3/papers.cfm?abstract _1781243. Friedman analyzes recoent decisions by the Robert Court that do not expressly overrule precedent but interpet so that nothing but hollow shells are left. Moses shows how the Robert Court reaches out to decide issues to impose the majority’s public policy predilections, thereby underminng precedent, even where the parties did not bring those issues to the Court or where those issues were never decided by lower courts or sometimes even briefed by the parties.
Wal-Mart itself is an exmple of the Court looking back to precedent but in doing so radically distorting it. General Telephone Co. v. Falcon was an earlier class action case in which the Court rejected the “across the board” theory of class actions. The “across the board” theory had approved class actions where a plaintiff, claiming one type of discrimination, could being a class action challenging every kind of discrimination of the employer. Falcon claimed he was a victim of defendant’s hiring discrimination but he tried to bring a class action challenging the employer’s promotion discrimination. After deciding such “across the board” class actions could not generally be brought under Rule 23, the Falcon Court, in a footnote, described two exceptions where a plaintiff could still bring a class action claiming more than one type of discrimination: 1. If the employer used a common test in more than one context, for example if in Falcon General Telephone used the same employment test for both hiring and promotion decisions and 2. if the employer had a “general policy” of discrimination.
The plaintiffs in Wal-Mart did not try to bring an “across the board” class action challenging all the ways that Wal-Mart discriminated. Instead, their action focused on Wal-Mart’s discriminatory pay and promotion practices at its stores. Since the level of pay was significantly influenced by whether an employee had been promoted or not, pay and promotion were closely interwined, unlike the hiring and promotion claims in Falcon. Falcon was inapposite Wal-Mart, yet the Court relied on it to reject plaintiffs class action. The Court turned the two exceptions from Falcon which would allow a plaintiff to bring a class action that reached more than one type of employer discriminaiton into a limit on the scope of class actions involving a single type of discriminatioin. Thus, it now appears that class actions challenging a single type of employer discrimination will be denied unless the employer uses either an employment test or has a general policy of discrimination. Since the Wal-Mart majority was unable to conceptualize the operation of Wal-Mart’s policy granting unchecked discretion to store managers on pay and promotions as a pattern or practice of discriminaiton, my fear is that lower courts and the Supreme Court itself will decide that systemic disparate treatment claims are limited to situations challenging the employer’s use of an employment test or where the employer has a formal, i.e., general, policy of discrimination. That would mean that Teamsters, Hazelwood and Bazemore, which interpreted Title VII to prohibit systemic patterns or practices of discriminaiton, are victim of stealth overruling.
Because the Wal-Mart majority hollowed out class action precedent to truncate class actions, that misuse of precedent forewhadows the use of the language in Wal-Mart to truncate the substance of the systemic theories of discrimination.
November 17, 2011 at 12:40 pm
Posted in: Civil Rights, Employment Law, Supreme Court, Uncategorized
Print This Post
One Comment
