Posts Tagged ‘Supreme Court’

SCOTUS: state courts not on elastic jurisdictional leash

My new Cato post applauds the Supreme Court for its 8-1 decision yesterday in Bristol-Myers Squibb v. Superior Court of California correcting the Ninth Circuit on the permissible extent to which California can reach out to hear lawsuits arising from controversies and litigants in other states. A couple of weeks ago a companion 8-0 decision from the court addressed similar issues from Montana in BNSF v. Tyrrell.

…in both instances — with only Justice Sonia Sotomayor still balking — the Justices made clear that some states’ wish to act as nationwide regulators does not allow them to stretch the constitutional limits on their jurisdiction that far. …

…the contemporary Court is keenly aware of the danger that the tactical use of forum-shopping will eclipse the merits in many categories of high-stakes litigation, turning potentially losing cases into winners through the chance to file them in a more friendly court.

That insight might prove significant at a time when forum-shopping has come to play a prominent role in high-profile ideological litigation—with conservatives running to file suit in the Fifth Circuit, liberals in the Ninth.

(& welcome readers from SCOTUSBlog, which rounds up other commentary on the decision)

Filed under: California, forum shopping, Montana, Supreme Court

“Slants” band win trademark battle at high court

In a First Amendment win with many future implications — most immediately for the Washington Redskins football team — the Supreme Court has ruled that the First Amendment does not allow the Patent and Trademark Office to withhold trademark protection from a rock band because it considers its name to be possibly racially disparaging (or self-disparaging). The holding was unanimous, although the Justices divided on rationale. [Ilya Shapiro/Cato, Betsy Gomez/CBLDF, Eugene Volokh and more (“Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment”)] Earlier here (“Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history?”), here, etc.

Filed under: First Amendment, music and musicians, Supreme Court, trademarks

Supreme Court roundup

DoJ reverses Obama predecessors’ stance on whether NLRA rights to collective action bar individual-arbitration clauses in employment contracts [BNA via Indisputably; consolidated trio of Murphy Oil, Ernst & Young, Epic Systems Corp. cases] Ninth Circuit OKs California end-run around Supreme Court’s jurisprudence on workplace arbitration class actions, time for review [WLF on Bloomingdales, Inc. v. Vitolo; update on cert denial: Deborah LaFetra, PLF]
Roberts joins liberals to hold 5-3 that cities can sue alleging Fair Housing Act violations; damages theories are to be constrained, though [Josh Blackman, SCOTUSBlog roundup on Bank of America v. Miami, earlier here and here]
How much deference should appellate courts give district courts in ruling on subpoenas issued by EEOC? [Ross Runkel and Federalist Society podcast with Karen Harned on McLane Co. v. EEOC]
Court unanimously disallows stratagem by which class action lawyers voluntarily dismiss individual claim so as to secure immediate appeal of certification denial [Howard Wasserman, James Freije on Microsoft v. Baker]
Chevron used racketeering law to fend off giant foreign judgment in Ecuador saga, losing side would like Supreme Court relief from that [Paul Barrett, Business Week on Donziger v. Chevron] Update Monday morning: Court will not hear;
“To Be Liable for Fraud, You Have to Have Actually Defrauded Someone” [Ilya Shapiro and Thomas Berry on Cato cert amicus in SGE Management v. Torres]

Filed under: arbitration, Chevron, class actions, housing discrimination, Supreme Court

Crime and punishment roundup

Clark Neily, who spent 17 years at the Institute for Justice and is the author of the constitutional law book Terms of Engagement, joins Cato as vice president for criminal justice [Cato press release]
California is among 29 states that revoke drivers’ licenses for failure to pay tickets, which can knock poorer persons out of the workforce over minor offenses [Maura Ewing, The Atlantic]
It’s quite rare for prosecutors to file felony charges against public defenders — unless you’re in New Orleans [The Guardian] “Jefferson Parish prosecutors used fake subpoenas similar to those in New Orleans” [Charles Maldonado, The Lens]
To explain America’s love affair with incarceration, look first to ideology not race [Thaddeus Russell, Reason]
North Carolina law bans persons on sex offender registry from using social media. Constitutional? [Federalist Society podcast with Ilya Shapiro, Cato on Supreme Court case of Packingham v. North Carolina, more on sex offender registries]
Judge orders D.A. to return life savings seized from legal medical cannabis business owners; no charges had been brought [Institute for Justice press release] D.A. then files charges against him and his attorney [NBC San Diego]

Filed under: Cato Institute, forfeiture, New Orleans, prosecution, sex offender registries, Supreme Court

Banking and finance roundup

What’s actually in the new House-passed bill revamping Dodd-Frank? And what’s likely to happen to it in the Senate? [David Henderson, EconLib; Benjamin Parker, Weekly Standard; Stephen Bainbridge]
Supreme Court, 9-0, rebuffs SEC: yes, disgorgement is a penalty and statute of limitations applies to it [Theresa Gabaldon/SCOTUSBlog (statutes of limitations “vital to the welfare of society,” per Sotomayor), Bainbridge and more, Thaya Brook Knight and Ilya Shapiro/Cato]
Allan Meltzer, R.I.P. [James Dorn, Gerald O’Driscoll, Ian Vásquez, Cato]
“The Foreign Corrupt Practices Act and the New Trump Administration: Your Top Ten Questions Answered” [Foley & Lardner]
June 15, mark your calendar: “Financial Crisis and Reform: Have We Done Enough to Fix the Government-Sponsored Entities?” with John Allison, Susan Wharton Gates, R. Christopher Whalen, Landon Parsons, and Ike Brannon, Cato event streaming live or in person in Washington, D.C.;
Why, yes: “Is It Time to Repeal FATCA?” [Veronique de Rugy, more]

Filed under: Dodd-Frank, FATCA, Foreign Corrupt Practices Act, Securities and Exchange Commission, statutes of limitations, Supreme Court

Does the law itself change when a federal agency files an amicus brief?

It might seem dangerous to entrust them with a power like that [Ilya Shapiro and Frank Garrison on Cato certiorari petition in donning and doffing FLSA case DuPont v. Smiley]

Filed under: administrative law, Supreme Court, wage and hour suits

Kindred Nursing Centers: SCOTUS hasn’t soured on arbitration

The Litigation Lobby may despise arbitration that is contractually agreed to before a dispute, editorialists may denounce it, and legal academics may deprecate it, but the U.S. Supreme Court shows no signs of cooperating in plans to snuff it out. In Kindred Nursing Centers Limited Partnership v. Clark, the latest of several cases in which it has state supreme courts that strayed from its guidance, the high court struck down a legal interpretation by the Kentucky courts “under which a general power of attorney, valid to authorize the execution of contracts generally, would not validly authorize execution of an arbitration agreement unless the power of attorney explicitly addressed that topic.” [Ronald Mann, SCOTUSBlog]

For me, the 7-1 vote was the most salient thing about this decision. All of the participating justices agreed except for Justice Clarence Thomas, who could not endorse the outcome based on his longstanding view that the FAA does not apply in state courts. By contrast, the vote last year in the quite similar case of Imburgia was 6-3. Perhaps the justices were motivated here less by their views about the FAA than by their views about the proper response to insincere state supreme courts.

More: Liz Kramer, Arbitration Nation.

Filed under: arbitration, Supreme Court

Soon, tumbleweeds in E.D. Tex.? SCOTUS strikes at patent forum-shopping

This morning’s Supreme Court opinion in TC Heartland v. Kraft Foods, hinging on what I described in January as a dry point of statutory interpretation, is likely to stand as a landmark win for defendants in patent litigation – and, on a practical level, for fairer ground rules in procedure. A unanimous Court (8-0, Thomas writing, Gorsuch not participating) rejected the broad reading of a venue statute by which the Federal Circuit had empowered lawyers to forum-shop disputes from all over the country into a few decidedly pro-plaintiff venues, above all the largely rural Eastern District of Texas. From here out, defendants can still be sued in a district such as E.D. Tex. if they have a regular and established place of business in it, but the decision is likely to shrink what I called in my January preview a “jackpot patent litigation sector… that shifts around billions of dollar.” By redirecting cases into more neutral venues, it should bring outcomes closer to reflecting cases’ actual merits, which would in turn do much toward restoring confidence in this sector of the law.

If Congress believes the Court has erred it is free to restore patent venue to a more shopper-friendly set of rules. But after the experience of recent years, it is unlikely that a Congress of either party or any likely political complexion will have an appetite for doing that.

[cross-posted from Cato at Liberty] More: Mike Masnick, TechDirt; Daniel Nazer, EFF. [& welcome SCOTUSBlog, Washington Post readers]

Filed under: Eastern District of Texas, forum shopping, patent litigation, patent trolls, Supreme Court

The next big class action case at SCOTUS?

The circuit courts have split on how to apply standards of “ascertainability” — a key threshold in certifying class actions, which in turn is the key stage in litigating them. Although the Supreme Court has repeatedly been invited to weigh in on the question, thanks in part to the efforts of NYU lawprof Sam Issacharoff, it has decided each time to pass on the issue. But a case against food producer ConAgra over the labeling of Wesson cooking oil as “all natural” may present the issue squarely enough to tempt the Justices to grant certiorari. In that case, Neil Gorsuch could get his first chance to tip his hand as to whether he will emerge as a successor to Scalia in applying skeptical limits to the class action device. [Alison Frankel, Reuters]

Filed under: class actions, Supreme Court

High school student makes contribution to Supreme Court literature

I’m not in a position to check whether Alexander Prakash’s study was well executed, but it does look well conceived. Prakash took a publicly available data set (measuring how much Justices talk during oral argument) and used it to test two hypotheses: 1) Justices talk more during high-profile cases, maybe because they like public attention; and 2) they talk more during closely divided cases, maybe because they seek to influence each other. Prakash finds the evidence consistent with 2) but not 1), and incidentally notes that there do not appear to be systematic differences in speaking time based on left-right orientation or gender (h/t Adrian Vermeule on Twitter).

Filed under: Supreme Court