Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Supreme Court’

Supreme Court asked to review cy pres settlements

We have often reported on controversies over cy pres class action settlements, in which part or all of a settlement fund goes to charities, universities, advocacy groups, or other unrelated institutions as opposed to actual victims of the sued-over conduct. Most appeals courts have agreed that cy pres raises distinctive issues that call for judicial oversight, yet the various federal circuits have marched off in different directions as to the appropriate nature and extent of such oversight, leading to inconsistency at least, and perhaps also to forum-shopping by lawyers seeking lenient standards.

Now figures well known to many of our readers — Ted Frank of the Center for Class Action Fairness, and David Rifkin and Andrew Grossman of Baker & Hostetler — have petitioned the Supreme Court for certiorari in a case arising from a privacy suit against Facebook over its Beacon program that eventuated in a cy pres settlement. “More than $6 million of [the] money was directed to the establishment of a new Internet privacy foundation with an advisory board that includes a Facebook representative and a plaintiffs’ lawyer from the case.” [Alison Frankel; Ted Frank/PoL; CCAF] Related: the “real problem with cy pres has never been that it is too costly. The real problem is that it creates an incentive for class counsel to act against the interests of the class.” [Andrew Trask]

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Mark your calendar: Cato’s Constitution Day in D.C. Sept. 17

Mark your calendar to be in Washington, D.C. Sept. 17 for the Cato Institute’s annual Constitution Day. Among the highlights: introductory talks by Cato’s Roger Pilon and Ilya Shapiro, a series of topical panels including many scholars, writers and lawyers oft linked in this space, a preview of next year’s term with star Court-watchers Tom Goldstein (SCOTUSBlog), Marcia Coyle (National Law Journal), and Howard Bashman (How Appealing), and a wrap-up address by Judge David Sentelle on freedom of the press. Full program and registration here.

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A libertarian Supreme Court? (If only)

Writing at the New Republic, Simon Lazarus of the left-leaning Constitutional Accountability Center says “the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters… has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court.” He cites the Cato Institute’s remarkably successful amicus curiae season (mentioned earlier in this space) and discerns in the majority an “appetite for doctrinal resets aimed at crippling federal regulatory power.”

In response, Randy Barnett, whose writings have been influential in advancing what libertarian tendencies may exist on the Court, writes “I wish it were so. … For a few reasons, the Court has become more ‘libertarian’ than its members.” Ilya Somin disputes Lazarus’s claim that the ObamaCare challenge invited the Court “‘to junk the “New Deal settlement” that bars constitutional interference with regulatory and safety net legislation.’ Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any ‘economic activity,’ and state governments would have even greater regulatory authority than that.”

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Richard Epstein: “The Myth of a Pro-Business SCOTUS”

Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.

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“Can a Treaty Increase the Power of Congress?”

From Cato, with video: “In 1920, in Missouri v. Holland, the Supreme Court seemed to say, contrary to basic constitutional principles, that a treaty could increase the legislative power of Congress. That issue is now back before the Court in Bond v. United States, a case with deliciously lurid facts involving adultery, revenge, and the Chemical Weapons Convention. Cato has filed an amicus brief in the case, written by Nicholas Rosenkranz, based on his Harvard Law Review article on the subject.” Earlier here.

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Labor and employment roundup

  • EEOC guidance lost big in last week’s SCOTUS employment decisions [Daniel Fisher, Michael Greve]
  • Classification of obesity as a “disease” has huge employment law implications [Jon Hyman]
  • EEOC goes after BMW, Dollar General over criminal background checks on job candidates [ABA Journal, Althouse, Michael Carvin and Eric Dreiband (“The Government Checks Criminal Records. Why Can’t Private Employers?”), Employer’s Lawyer, earlier] “So the gov’t convicts minorities at a disproportionate rate. Then the gov’t sues companies that checks those records, smart.” [Surya Gunasekara] Why not ban Google too? (Don’t give them ideas, please) [ Mike Riggs]
  • Wage and hour suits soar, record number filed so far in 2013 [Corp Counsel, Overtime Lawyer, I-Sight] Related: what’s wrong with the epithet “wage theft” [Hyman]
  • Employer’s claim: I can’t get due process from Connecticut Commission on Human Rights and Opportunities [Daniel Schwartz]
  • The First Amendment protects our speech rights against the government, not against those we deal with in the workplace who may disapprove [Schwartz and more on Connecticut employment proposal] NLRB “attempting to sanction a California newspaper despite a federal appeals court’s decision that such a ruling threatened the publisher’s First Amendment rights.” [Washington Free Beacon]
  • “Bergen, Passaic County towns saddled with costs as lawsuits filed by police add up” [Bergen Record via NJLRA]

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Cato’s phenomenal year at the Supreme Court

This year, the Cato Institute went 15-3 before the Supreme Court, counting argued and decided cases (and not counting Perry, which was resolved on standing rather than merits).

That’s pretty phenomenal. By way of comparison, in this listing of greatest American sports teams, the legendary 1961 New York Yankees were 109-53; the Chicago Bulls of 1995-96 were 72-10; and the 2001-02 Detroit Red Wings were 51-12. Sandy Koufax’s 1963 season had his best win-loss record at 25-5.

And that’s the kind of year we’ve had in the Cato legal department.

P.S. And here’s Ilya Shapiro with a more detailed post including a list of cases. He notes that of the Court’s closing trio of very high-profile decisions, Cato was “the only organization to file briefs supporting the challengers on each one (Fisher v. UT-Austin, Shelby County v. Holder, Windsor v. United States & Perry v. Hollingsworth).”

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Adoptive Couple prevail in ICWA case

Yesterday, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlog, RadioLab. [cross-posted from Cato at Liberty]

P.S. Feelings run high on both sides of the Baby Veronica controversy. The Christian Alliance for Indian Child Welfare has backed the Adoptive Couple side and seeks reform of ICWA. By contrast, talk show personality Melissa Harris-Perry recently described adoption by non-Indians of kids with Indian blood as “transnational baby-snatching” [MSNBC, at 2:27] Another opposed view: Steve Russell, Indian Country Today [“The enemies of Indian sovereignty understand the 14th Amendment equal protection clause to be their friend.”]

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