Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Sonia Sotomayor’

Justice Sotomayor on administrative law’s “stacked deck”

Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.

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

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

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

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Supreme Court: class actions can’t be brought back time after time

Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.

Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?

Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.

Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).

The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.

[cross-posted from Cato at Liberty]

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Supreme Court on racial preferences, cont’d

A few more notes on the case already covered yesterday in tweet form:

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

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

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

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Schuette v. Coalition, in tweets

Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.

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

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

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Philosophy, not gender, drives SCOTUS decisions

My new post at Cato at Liberty takes a look at yesterday’s Supreme Court decision in Williams v. Illinois, a Confrontation Clause case involving an accused rapist. It’s one more data point bolstering the observation that if the three most liberal members of the current Court (Ginsburg, Kagan, and Sotomayor) vote together with some frequency, it’s more because they share a certain philosophy about the law than because they’re all women.

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

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SCOTUS, 6-2: vaccine suits preempted

James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.

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

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November 2 roundup

Headline stories of the week:

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July 16 roundup

  • Bad move for GOP to call disappointed litigant as witness at Sotomayor hearing [Taranto via Barnett] Nominee’s disavowal of Legal Realism and identitarian/viewpoint-based judging should be seen as a victory for legal conservatism [Copland at PoL, related Examiner and NRO “Bench Memos”; Adler/WaPo; coverage in NYT] Why do Senators speechify instead of asking questions? “Why does the rain fall from up above?” [Althouse]
  • “Illinois Law Dean Announces New Admission Policy in Wake of Scandal” [NLJ; earlier] “U of I Law School Got Scholarship Cash for Clout Admissions” [ABA Journal]
  • Weird warning sign in Swedish elevator [BoingBoing; commenters there disagree as to whether the elevator in question is of an old continuous-motion type called a Paternoster which has fallen out of use in part because of its high accident risk, or an elevator of more conventional design but lacking an inner door]
  • “Gambler Appeals; Wants More of His Money Back From Casino” [South Korea; Lowering the Bar]
  • The price of one Ohio Congresswoman’s vote on Waxman-Markey [Washington Times via Coyote, who has a followup]
  • “Want to live like tort king Melvin Belli?” [real estate listing in Pacific Heights; WSJ Law Blog]
  • Fierce moral urgency yada yada: “Put nothing in writing, ever” advised Carol Browner on CAFE regs [Mark Tapscott, D.C. Examiner] Alex Beam zings Obama on signing statements [Boston Globe]
  • Constitution lists only three federal crimes: treason, piracy, and counterfeiting. How’d we get to 4,500 today? [Ryan Young, CEI “Open Market”]

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On the radio

RadioMicI’ve been appearing on a number of radio shows to comment on the Sonia Sotomayor confirmation hearings. Yesterday I joined Jim Vicevich on WTIC (Hartford) for a preview of the Senate proceedings, and this morning I was a guest on “York Morning News” on WSBA (York, Pa.), the Wills and Snyder show on WTAM (Cleveland), the Morning News with Lana Hughes and J.P. Pritchard on KTRH (Houston), Helen Glover’s show on WHJJ (Providence), and “Morning News and More with Matt Ray and Kelly Sanchez” on KPAY (Chico, Calif.). If you’re interested in having me on your show, contact Hannah Martone at the Manhattan Institute: 212-599-7000.

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