Orin Kerr has some worthwhile quotes from today’s 5-4 decision in Kansas v. Marsh that says a lot about how individual justices view their role in a constitutional democracy, and whether ends justify means. But we now have four justices that have announced their openness to unilaterally declaring the death penalty unconstitutional.
Nanny-state lawsuits in the New York Times
Tom Zeller, writing on the MySpace lawsuit, quotes observers who unanimously condemn the species of nanny-state lawsuit, and quotes blogger Ken Chan:
“I recognize that there’s a certain part of the population who don’t know a steady fried chicken diet is bad for them. I feel bad for these people,” Mr. Chan wrote. “However, these are probably the same people who don’t put on their seatbelts and who suck down endless coffee during the day and Coors at night. So let’s be honest with ourselves here. You’re not going to save these people. You’re just screwing up the chicken for the rest of us.”
Zeller probably didn’t get the memo from the Times editors about the “benefits” of such lawsuits, but we’ll no doubt see some plaintiffs’ attorney defending the McDonald’s coffee lawsuit in the letters section. (Tom Zeller Jr., “A Lesson for Parents on ‘MySpace Madness'”, New York Times, Jun. 26). Mildly related, and encouraging for what it says about people starting to be annoyed by the food police: Fluffernutter controversy in Massachusetts.
A Lawsuit Everyone Can Bring
Can you sue over something that you claim will affect everyone in the planet in the distant future, even if that means that everyone on Earth can file a similar lawsuit now? The Supreme Court may address a similar question soon. The Supreme Court agreed today to consider whether the Bush administration must regulate carbon dioxide to combat potential global warming, in Massachusetts v. EPA.
Twelve states had sued the EPA to force it to regulate carbon dioxide emissions from automobiles. Although carbon dioxide is an integral component of the atmosphere, and does not contaminate or cause cancer, the states argued it constitutes air pollution covered by the Clean Air Act, because it may cause global warming over the long run.
A splintered three-judge panel of the D.C. Circuit Court of Appeals voted 2-to-1 to reject the lawsuit, but the judges in the majority didn’t agree on why. Judge Sentelle would have rejected the suit for not complying with the Constitution’s requirement of standing, under which a plaintiff must allege particularized injuries, not a “generalized grievance” shared by much of the public at large (much less the entire planet). Judge Randolph, by contrast, was unsure of whether the plaintiffs had standing, but concluded that even if they did, and the EPA had jurisdiction to regulate carbon dioxide, the lawsuit should still be dismissed. He pointed out that regulating carbon dioxide on a state-by-state basis, as the Clean Air Act would do, made no sense, since global warming is a planet-wide concern. Thus, the EPA’s decision not to regulate carbon dioxide was sensible. By contrast, Judge Tatel’s dissent argued that the plaintiffs did have standing, since although everyone might be affected by global warming, they might be affected by it in different ways, with a coastal state being flooded while an arid state might become more arid.
In another lawsuit, attorney generals from seven states have sued out-of-state utilities under state nuisance laws, alleging that power plants, by generating carbon dioxide, are causing global warming. New York federal judge Loretta Preska dismissed their lawsuit in Connecticut v. American Electric Power Co. She, too, held that the plaintiffs lacked standing, since they complained of a generalized injury that would be better handled by the political process than by the courts.
If state attorney generals can sue power plants in distant states, that may lead to an explosion of interregional litigation, regional conflict, and judicial micromanagement of out-of-state utilities.
“Tort reform for liberals”
That’s Prof. Bill Childs’s theme as he begins a week guestblogging at our sister site, Point of Law.
“Irreverent would-be juror finds joke’s on him”
A License To Complain
Last Thursday, the Supreme Court ruled that a worker alleging retaliation for complaining about discrimination may sue even if she has not suffered a tangible loss, like a firing or denial of a promotion. In its decision in Burlington Northern v. White, the Supreme Court ruled that under Title VII of the Civil Rights Act, “retaliation” includes any act that “well might have dissuaded a reasonable worker” worker from complaining. The court upheld a $43,500 judgment in favor of an employee who was reassigned to different tasks and then suspended for a month before being reinstated with full backpay.
The court’s low bar for what constitutes retaliation turns many mistaken complaints of discrimination into future lawsuits. Under federal court rulings, even groundless complaints are often protected against retaliation. Complaints to an employer are protected as long as the complainant reasonably believes that discrimination or harassment occurred, even if it didn’t. And complaints to the EEOC are protected even if they are plainly unreasonable, intemperate, and false. So an employee who has never been discriminated against can sue over deteriorating relationships with co-workers whom the employee has falsely accused of discrimination, claiming that the bad relationships constitute a “hostile environment” in retaliation for claiming discrimination.
In an attempt to forestall some such suits, the Supreme Court added a caveat to its test. It declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a claim of discrimination do not rise to the level of retaliation, since they would not be sufficiently “materially adverse” to dissuade someone from complaining of discrimination. Whether or not that caveat is consistent with the court’s general test, it is welcome from a First Amendment perspective. As Judge Kozinski observed in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), banning all criticism or ostracism in response to a discrimination charge may well violate the First Amendment freedoms of speech and association.
But the Supreme Court’s caveat may not be enough to protect First Amendment rights. For example, in Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997), a mayor publicly denounced as unfounded a sexual harassment complaint against him. It is easy to see how such a public denial might dissuade a publicity-shy complainant from bringing an accusation. But as the Massachusetts Supreme Court observed, defining his speech as unlawful retaliation would clash with the First Amendment. Retaliation prohibitions are “subject to constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Since the Supreme Court has set the bar so low, the courts may need to exempt speech about the merits of discrimination claims to prevent censorship.
But some judges will probably refuse to do so. Judge Myron Thompson held an employer liable for retaliation for publicly criticizing a discrimination complaint, rejecting a First Amendment defense on the ground that since sexual harassment law supposedly trumps the First Amendment, so do laws against retaliation.
“VA Barred from Publicizing Offer to Vets”
Brook no competition dept.: “A federal judge temporarily has barred the government from publicizing its free credit monitoring offer to veterans whose personal data was stolen and wants to see if they might get a better federal offer. Lawyers who have filed a class-action lawsuit on behalf of the 26.5 million veterans and active-duty troops affected contend that accepting the government’s offer could jeopardize their chance of winning more money in the privacy suit.” (Hope Yen, AP/Washington Post, Jun. 26)(hat tip: Florida Masochist).
New guestblogger Hans Bader
Joining us this week as a guestblogger is Hans Bader, Counsel for Special Projects at the Competitive Enterprise Institute in Washington. Hans is a frequent visitor to our comments section; his current projects for CEI include constitutional challenges to the 1998 tobacco Master Settlement Agreement and to the Public Company Accounting Oversight Board created by Sarbanes-Oxley. Before joining CEI he was at the Center for Individual Rights where his work included constitutional and civil rights litigation, including free speech and workplace claims.
Update: Devastated by cheating spouse
In the much-watched case we discussed last week (Jun. 21), the Supreme Court of Canada ruled that compensation could indeed be awarded a wife for her inability to work due to ongoing trauma from her ex-husband’s infidelity years earlier. Per the Globe and Mail:
Some legal experts said yesterday that the vague and self-contradictory nature of the ruling may encourage litigation from other estranged spouses who want to mount similar arguments based on their emotionally fragile state.
“What has opened up is a new route for people to argue that they cannot become self-sufficient,” said University of Toronto law professor Brenda Cossman.
(Kirk Makin, “Divorce ruling threatens to open floodgates”, Globe & Mail, Jun. 22).
Jack Thompson being risible faster than we can post about it
Overlawyered favorite Jack Thompson (Jun. 9, Apr. 14, ad infinitum) is perturbed that his publishing house, Tyndale House, is licensing a video game based on the Left Behind books. Thompson is especially upset that the game will offer players the option to take the role of the anti-Christ. He’s certainly entitled to break off his publishing relationship (doing so shows admirable consistency) and attempt to enlist others in a boycott, but his threat to take “legal action” on grounds of unspecified “tortious conduct” seems questionable. (via Rickey)