Lawfare’s Litigation Documents & Resources Related to Trump Executive Order on Immigration is an archive of court filings and related resources surrounding Trump’s three travel ban executive orders. — Joe
Category Archives: Court Opinions
Methods of selecting presidential nominees: From peer review to populism in democratic institutional design
According to Stephen Gardbaum and Richard H. Pildes in Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies, New York University Law Review, 2018, Forthcoming, Donald Trump would most likely not be President but for the institutional change made in the 1970s in the nature of the presidential nomination process. From the article’s conclusion:
This Article should be read against the rise of the populist forces, including illiberal and authoritarian ones, that are currently roiling numerous long-established democracies. Populist alienation, anger, and hostility toward government and political elites are not unexpected in the aftermath of the financial crisis that began in 2007; as economic historians have shown in studies of democracies going back to 1870, financial recessions—which endure much longer and are therefore more painful than ordinary economic recessions—regularly spawn a rise in populist politics and parties, in left and right variations. Add to these economic dislocations the cultural challenges posed in many countries by the dramatic rates of increase of immigration (legal and illegal) in recent years, as well as the opportunities created by the rise of social media, and the challenge to traditional politics and parties is even less surprising.
Here’s the abstract:
In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. This article explores the contrast between nomination processes that entail a central role for “peer review” – in which party leaders have a central voice in the selection of their parties’ nominees – and purely populist selection methods, such as currently used in the United States, in which ordinary voters completely control the selection of nominees and party figures have no special role.
The first half of the article is historical and focuses on the United States. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. In the historical sections, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The comparative sections show that the U.S. system is an extreme outlier among major democracies: in no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for Chief Executive.
The institutional design through which democracies choose nominees who compete to become a nation’s Chief Executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This article also contributes to the general analysis of the rise of populist politics in many democracies today by showing how the institutional design for how party nominees are chosen can enable or constrain how easily and quickly populist political forces are able to capture control of government.
Interesting. — Joe
Here’s the abstract for Adam Steinman’s very interesting article simply titled Case Law, Boston University Law Review, Vol. 97, No. 1947, 2017:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.
On Constitutional Law Prof Blog, Steven D. Schwinn reports that a sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School’s Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. He noted that the ruling [text] means that the movants’ efforts to obtain the rulings can move forward, although it does not say anything about the merits. — Joe
“ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.” It’s a Fact: Supreme Court Errors Aren’t Hard to Find. Interesting.
H/T beSpacific. — Joe
The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today. The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld. The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case. The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure. Nonetheless, they have to provide a level of due process to the accused. The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”
The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties. This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing. University rules did not, in fact, require any of the parties to attend. The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing. They decided to impose a two year suspension that was later reduced to one year on administrative appeal.
Doe took his case to the District Court which found in his favor. The University could only decide based on the submissions from each party, basically one’s word against another. The Court stated that cross examination was “essential” to due process in these circumstances. The District Court also noted that the University’s code allowed for notarized statements from the accuser. Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.
The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension. The Court largely agreed with the District Court’s reasoning. The Court of Appeals set out the required process:
While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).
Both parties agreed that Doe’s property interest (not being suspended) is significant. The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.
Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.
The Court held that the cross examination need not take the form of direct confrontation. The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype. At the very least, the accuser will have to participate somewhat more actively in the hearing.
I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances: Sexual Paranoia Come to Campus, which is about this very issue. Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories. It’s well worth reading in light of this decision.
Here’s the abstract for Teaching with PACER: Improving Understanding by Harnessing Transparency by George Kuney:
The article discusses teaching law school courses with the Public Access to Court Electronic Records (PACER) system and both student and instructor e-writing projects relating to that system.
The case method of instruction in its classic form does not capture the context and intricacies of bankruptcy practice, especially in United States Chapter 11 cases. What is often missing is the rich compilation of detail found in the mountain of filings that is a Chapter 11 case, whether large or small. These details often evidence the shifting loyalties, relationships, interests, and emotions of the participants. These dynamics are largely lost in even trial court decisions in the case, much less appellate opinions.
With the advent of national federal court adoption of the PACER system throughout the United States, however, a new resource for teaching has arrived. Over the last several years, I have been teaching Chapter 11 seminars that augment a text with a research project that uses PACER (or a similar service available in some large cases from the claims agents in the case) to provide access to the docket and substantially all the pleadings and other documents in the case. This research project allows students to research the background of the debtor company, examine what led it to seek relief under Chapter 11, and to follow the case to conclusion, through all its twists and turns, even if there are no appeals. Student reaction has been positive.
Interesting. — Joe
Reporters Committee for Freedom of the Press and a coalition of 17 other media organizations file amicus brief in support of limiting fees for accessing PACER records
From the Sept. 6, 2017 press release:
On Tuesday, the Reporters Committee for Freedom of the Press and a coalition of 17 media organizations submitted a friend-of-the-court brief to the U.S. District Court for the District of Columbia in the case of National Veterans Legal Services Program v. United States of America. The brief argues that the law requires the judicial system to limit the fees it charges people to access its Public Access to Court Electronic Records (PACER) system to the cost of disseminating the information requested. Currently, many members of the media face prohibitive costs when trying to obtain court records to inform the public about what is happening in the judicial system.
Text of amicus brief. — Joe
Orin Kerr’s How to Read a Legal Opinion: A Guide for New Law Students, 11 The Green Bag 2d 51 (2007) celebrates the 10th anniversay of its publication in The Green Bag. It should be required reading during the first week of 1Ls’ law school careers. — Joe
At the US District Court for the Eastern District of Virginia, the court ruled that a politician who reacted to a constituent’s comment on her “official” Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment. Davidson v. Loudoun County Board of Supervisors, 1:16-cv-JCC-IDD (July 25, 2017). On Constitutional Law Prof Blog, CUNY Professor of Law & University Distinguished Professor Ruthann Robson writes “This case should serve as a wake-up call for politicians who use their ‘official’ Facebook pages in ways that may violate the First Amendment. The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President’s practice of “blocking” people on Twitter.” — Joe
Here’s a little postscript to the Apple e-book antitrust case. A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure. BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.
BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries. The publishers presented evidence contradicting BOB’s claims. The move to agency model pricing actually increased revenues for BOB. The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.
In Foreword: The Books of Justices, 115 Mich. L. Rev. 733 (2017), Linda Greehouse reports on the results of her study of SCOTUS justices’ practice of citing “books” during the 2015-16 Supreme Court term: “For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations.”
Here is a capsule view of her findings:
Categories of Books Cited
Treatises and practice manuals 51 times cited
Primary sources, historical 27 times
History and political science 17 times
Law 16 times
Dictionaries 7 times
Restatements 6 times
Literature 5 times
Primary sources, modern 3 times cited
A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.
Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:
The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.
The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes
Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.
End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe
From the announcement:
[W]e are launching a new project to download all of the free opinions and orders that are available on PACER. Since we do not want to unduly impact PACER, we are doing this process slowly, giving it several weeks or months to complete, and slowing down if any PACER administrators get in touch with issues. … In this project, we expect to download millions of PDFs, all of which we will add to both the RECAP Archive that we host, and to the Internet Archive, which will serve as a publicly available backup.1 In the RECAP Archive, we will be immediately parsing the contents of all the PDFs as we download them. Once that is complete we will extract the content of scanned documents, as we have done for the rest of the collection.
H/T to Gary Price’s InfoDocket report. — Joe
Round one in the Official Code of Georgia Annotated lawsuit: “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection.”
Last week, US District Court Judge Richard Story issued a ruling in favor of the Georgia Code Revision Commission to preserve the State of Georgia’s claimed copyright of the Official Code of Georgia Annotated (OCGA). Here’s the text: Code Revision Commission et al v. Public.Resource.Org, Inc. The case turned on Lexis-supplied annotations to an official state code that in this rare instance happens to be annotated; most, if not all, other official state codes are unannotated. As value-added material, the annotations entitled the work to copyright protection according to the district court. Wait ‘n see.
At the URL for Public Resources’ OCGA archive, Carl Malamud posted the following message:
Dear Fellow Citizen:
You have been denied permission to access this document at this time due to ongoing judicial proceedings in the following case: Code Revision Commission et al v. Public.Resource.Org, Inc. (Case 1:15-cv-02594-MHC, U.S. District Court for the Northern District of Georgia)
Your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.
To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor. For more information on edicts of government and your rights as a citizen under the rule of law, please read my testimony before the United States Congress. You may find more information on our activities at Public Resource on our registry of 2015 activities.
Thank you for your interest in reading the law. An informed citizenry is a fundamental requirement for our democracy to work. I appreciate your efforts and apologize for any inconvenience.
March 23, 2017
For an excellent article covering this development, see Joe Mullin’s If you publish Georgia’s state laws, you’ll get sued for copyright and lose: In some states, you can’t read the law without paying a corporation (ars technica, March 30, 2017)– Joe
“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:
This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.
Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.
This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.
Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:
This report presents findings from a survey of state level primary legal information. Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions). This survey was done with the goal of reviewing the free and open status of this legal information.
Findings indicate that there exists at least 14 barriers to accessing legal information. These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information. At the time of the census, no state provided barrier-free access to their legal information.
Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources. Current collections allow for citation retrieval and some basic keyword searching. No state allows for federated searching of legal information collections. The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon. There is also a worrisome lack of archival material maintained by states. Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.
States were scored and ranked based on the openess of their legal publication practices. On a scale of 0 – 24, the highest score achieved was 18. The lowest was 8 and the median was 14. These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.
From the Press Release:
Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.
Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.
Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.
Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.
Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.
Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access. Hat Tip to Rich Leiter for the news.
The Supreme Court issued two opinions this morning. The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire. That case is White v. Wheeler (14-1372). Wheeler was convicted of two murders and sentenced to death in Kentucky. One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth. The opinion describes these statements:
In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.
The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion. The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal. Wheeler filed a habeas corpus petition in federal court. The District Court dismissed but the Sixth Circuit reversed and granted the petition.
The Supreme Court reversed. It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court. The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition. The Court issued the opinion per curiam. There were no dissents.
The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law. Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back. That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.
The present case, DIRECTV, INC. v. Imburgia (14-462), concerns a variation of the Concepcion holding. DIRECTV was sued in state court by individuals believing early termination fees violated California law. The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration. There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void. The California trial court denied a request to send the matter to binding arbitration. The California Court of Appeals agreed citing Discover Bank.
The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law. The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions. The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank. The Court made it pretty clear that there was no way of getting around the Concepcion ruling. Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor. Justice Thomas believes that the FAA does not apply to proceedings in state court. Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters. He expresses similar views as to Justice Thomas but with a little more depth.
The Supreme Court issued one opinion this morning. The case is Shapiro v. McManus (14-990). Petitioners in this case challenged the constitutionality of Maryland’s congressional apportionment map under First Amendment/Freedom of Associations grounds. They gave the District Judge a petition to convene a three-judge court to hear the matter. 28 U.S.C. §2284(a) states that when this type of lawsuit is filed and the judge is presented with a petition a three-judge court to hear the matter, the judge shall notify the chief judge of the Circuit who shall designate two other judges to serve on the panel.
The statute contains one qualification: “unless he determines that three judges are not required.” The District Judge in this case decided that three judges were not required as he did not believe any relief was available to the petitioners in that they were free to join with others to express a political opinion. Rather than notifying the Chief Judge, he dismissed the case. The Fourth Circuit affirmed in an unpublished opinion.
The Supreme Court reversed. The Court stated that the statute is written in mandatory terms. The only discretion the Judge has when presented with a petition for a three-judge panel is analyzing whether the parties properly belong in federal court, not whether the plaintiff’s case has any merit. The petitioner’s claims clears the bar for jurisdiction. The petitioner’s claims may or may not have merit, but they are entitled to a hearing before a three-judge court under the statute. Justice Scalia delivered the opinion for a unanimous Court.