Supreme Court: The Term in Review (2012-2013) Part 2 of 2
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Supreme Court: The Term in Review (2012-2013) Part 2 of 2


– AS I WAS SAYING,
THE ACCEPTED TRUTH–EXCUSE ME. THE ACCEPTED TRUTH THAT– THAT THE NEW YORK HIGH COURT
OBSERVED IS ONE THAT IS CHANGING AND CHANGING RAPIDLY
IN THIS COUNTRY AS PEOPLE THROUGHOUT THE COUNTRY ENGAGE IN AN EARNEST DEBATE OVER WHETHER THE AGE-OLD
DEFINITION OF MARRIAGE SHOULD BE CHANGED
TO INCLUDE SAME-SEX COUPLES. THE QUESTION BEFORE THIS COURT
IS WHETHER THE CONSTITUTION PUTS A STOP TO THAT ONGOING
DEMOCRATIC DEBATE AND ANSWERS THIS QUESTION FOR ALL 50 STATES. AND IT DOES SO
ONLY IF THE RESPONDENTS ARE CORRECT THAT NO RATIONAL,
THOUGHTFUL PERSON OF GOODWILL COULD POSSIBLY DISAGREE
WITH THEM IN GOOD FAITH ON THIS AGONIZINGLY DIFFICULT
ISSUE. THE ISSUES,
THE CONSTITUTIONAL ISSUES THAT HAVE BEEN PRESENTED
TO THE COURT, ARE NOT OF FIRST IMPRESSION
HERE. IN “BAKER V. NELSON,” THIS COURT UNANIMOUSLY DISMISSED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION. – MR. COOPER, “BAKER
V. NELSON” WAS 1971. THE SUPREME COURT HADN’T EVEN DECIDED THAT GENDER-BASED
CLASSIFICATIONS GET ANY KIND OF HEIGHTENED SCRUTINY. – THAT IS– – AND THE SAME-SEX
INTIMATE CONDUCT WAS CONSIDERED CRIMINAL
IN MANY STATES IN 1971, SO I DON’T THINK WE CAN EXTRACT
MUCH FROM “BAKER V. NELSON.” – WELL, YOUR HONOR, CERTAINLY I ACKNOWLEDGE
THE PRECEDENTIAL LIMITATIONS OF A SUMMARY DISMISSAL. BUT “BAKER V. NELSON” ALSO CAME FAIRLY FAST ON THE HEELS
OF THE “LOVING” DECISION. AND, YOUR HONOR, I SIMPLY MAKE THE OBSERVATION THAT IT SEEMS IMPLAUSIBLE
IN THE EXTREME, FRANKLY, FOR NINE JUSTICES TO HAVE– TO HAVE SEEN
NO SUBSTANTIAL FEDERAL QUESTION IF IT IS TRUE, AS THE RESPONDENTS MAINTAIN, THAT THE TRADITIONAL DEFINITION
OF MARRIAGE INSOFAR AS– INSOFAR AS IT DOES NOT INCLUDE SAME-SEX COUPLES, INSOFAR AS IT IS A GENDER
DEFINITION IS IRRATIONAL AND CAN ONLY BE EXPLAINED,
CAN ONLY BE EXPLAINED, AS A RESULT OF ANTI-GAY MALICE
AND A BARE DESIRE TO HARM. – WELCOME BACK TO OUR LIVE
WEB CAST OF “SUPREME COURT; THE TERM IN REVIEW.” IN A TERM WITH NO LACK
OF BIG DECISIONS, IT’S SAFE TO SAY NONE
WERE MORE EAGERLY ANTICIPATED THAN THOSE DEALING WITH
THE ISSUE OF SAME-SEX MARRIAGE. IN THE FIRST OF THESE,
“UNITED STATES V. WINDSOR,” THE ISSUE
WAS THE CONSTITUTIONALITY OF SECTION 3 OF THE FEDERAL
DEFENSE OF MARRIAGE ACT, OR DOMA. SECTION 3 PROVIDED THAT
FOR PURPOSES OF FEDERAL LAW, RULES, REGULATIONS, AND ADMINISTRATIVE ACTIONS,
THE WORD “MARRIAGE” MEANT ONLY THE LEGAL UNION
BETWEEN ONE MAN AND ONE WOMAN. EDITH WINDSOR AND THEA SPYER
WERE LAWFULLY MARRIED IN CANADA. THEY LIVED IN NEW YORK,
WHICH RECOGNIZED THEIR MARRIAGE. WHEN SPYER DIED, SHE
LEFT HER PROPERTY TO WINDSOR. IF FEDERAL LAW
RECOGNIZED THEIR MARRIAGE, WINDSOR WOULD NOT OWE
FEDERAL ESTATE TAXES, BUT BECAUSE OF SECTION 3
OF DOMA, WINDSOR OWED $360,000. SO, WELL, SHE PAID THE TAXES, BUT THEN SHE FILED SUIT TO
CHALLENGE THE CONSTITUTIONALITY OF SECTION 3. SHE WON IN THE DISTRICT COURT. BUT, ERWIN, TELL US
WHAT THE SUPREME COURT SAID. – THE SUPREME COURT
IN A 5 TO 4 DECISION, DECLARED SECTION 3
OF THE DEFENSE OF MARRIAGE ACT UNCONSTITUTIONAL
AS DENYING EQUAL PROTECTION. – OK, BUT FIRST THERE WAS
A STANDING ISSUE THAT HAD TO BE RESOLVED. – THAT’S RIGHT. THE OBAMA ADMINISTRATION
ENFORCED THE STATUTE, BUT THEY ACTUALLY
AGREED WITH THE PLAINTIFFS THAT IT WAS UNCONSTITUTIONAL, AND THEY DECLINED TO DEFEND IT. SO A GROUP OF HOUSE MEMBERS INTERVENED TO DEFEND
THE STATUTE. THE QUESTION, THOUGH,
BEFORE THE COURT WAS WHETHER THE UNITED STATES
HAD SUFFICIENT STANDING, HAD A SUFFICIENTLY INJURY,
CONCRETE INJURY, TO QUALIFY
FOR STANDING UNDER ARTICLE III. AND THE MAJORITY
HELD THAT IT DID, THAT THE CONCRETE INJURY WAS A DISPUTE OVER
WHETHER THE FEDERAL TREASURY WAS GOING
TO REFUND WINDSOR’S TAXES. AND THE DISTRICT COURT’S ORDER THAT THE TREASURY
DID HAVE TO REPAY THE MONEY WAS A REAL AND IMMEDIATE INJURY THAT WAS SUFFICIENT
FOR ARTICLE III PURPOSES. THE COURT ALSO NOTED THAT ALTHOUGH IT
WAS SOMEWHAT PROBLEMATICAL THAT THE UNITED STATES
WOULD HAVE STANDING WHEN THEY AGREED THAT
IT WAS UNCONSTITUTIONAL BUT DECLINED TO DEFEND IT,
THE COURT SAID, WELL, THE PROBLEMS WERE OVERCOME BY BOTH THE SHARP ADVERSARY
PRESENTATION BY THE HOUSE GROUP AND ALSO
SOME OF THE AMICUS BRIEFS AND ALSO BY THE BROAD PRACTICAL
IMPORTANCE OF THE ISSUES. – OK, THERE WAS ALSO
THE FEDERALISM ASPECT TO THE DECISION, TOO. – YES, JUSTICE KENNEDY POINTED OUT
THAT BY TRADITION AND HISTORY, THE DEFINITION
AND REGULATION OF MARRIAGE HAD ALWAYS BEEN LEFT
TO THE STATES AND THAT IN THIS CASE NEW YORK HAD CHOSEN TO RECOGNIZE
WINDSOR’S AND SPYER’S MARRIAGE AND TO ACCORD IT
THE SAME DIGNITY AND STATUS THAT IT DID
FOR EVERY OTHER MARRIAGE. – OK, ERWIN, LET’S GET TO THIS
EQUAL PROTECTION ARGUMENT NOW. – THE COURT’S EQUAL PROTECTION ANALYSIS VERY MUCH FOLLOWED
WHAT IT SAID ABOUT FEDERALISM.. THE COURT SAID THAT CONGRESS
HAD TO HAVE A GOOD REASON FOR DISPLACING NEW YORK’S CHOICE TO RECOGNIZE
THE SAME-SEX MARRIAGE. JUSTICE KENNEDY WRITING
FOR THE COURT SAID THERE WASN’T SUCH A GOOD REASON. HE SAID CONGRESS WAS ACTING TO
DISAPPROVE A PARTICULAR GROUP. THAT’S NOT A LEGITIMATE INTEREST
SUFFICIENT UNDER THE EQUAL PROTECTION
CLAUSE. JUSTICE KENNEDY QUOTED
THE LEGISLATIVE HISTORY OF THE DEFENSE OF MARRIAGE ACT, WHICH SAID ITS PURPOSE
WAS TO EXPRESS DISAPPROVAL OF HOMOSEXUAL CONDUCT. THE COURT SAID SUCH ANIMUS
IS NOT A LEGITIMATE PURPOSE UNDER THE EQUAL PROTECTION
CLAUSE. – SO WHAT DOES THIS DECISION
DO FOR SAME-SEX COUPLES WHO DON’T LIVE IN STATES
THAT RECOGNIZE GAY MARRIAGE? – THERE ARE MANY ISSUES THAT ARE
GOING TO HAVE TO BE RESOLVED. SECTION 2 OF THE DEFENSE
OF MARRIAGE ACT SAYS THAT NO STATE HAS
TO RECOGNIZE A SAME-SEX MARRIAGE FROM ANOTHER STATE. THERE ARE SURE TO BE CHALLENGES
NOW TO SECTION 2 OF THE DEFENSE OF MARRIAGE ACT. ALSO, THERE ARE GOING
TO BE ISSUES WHEN A MARRIED SAME-SEX COUPLE MOVES TO A STATE THAT DOESN’T
RECOGNIZE SAME-SEX MARRIAGE. TO PUT IT IN A CONTEXT
OF FEDERAL COURTS, IMAGINE THERE’S A CASE IN A FEDERAL COURT
IN SUCH A STATE AND THE ISSUE COMES UP
AS TO WHETHER SPOUSAL PRIVILEGE APPLIES, A QUESTION USUALLY DECIDED WITH REGARD
TO STATE LAW. WHAT’S THE RESULT
IN THAT SITUATION? – THERE’S ALSO
ANOTHER OPEN QUESTION, WHICH IS WHAT THIS IS GOING
TO MEAN FOR STATES THAT HAVE CONSTITUTIONAL BANS
ON SAME-SEX MARRIAGE. I THINK THE ANIMATING PRINCIPLE
IN THIS CASE, AS IT WAS IN “ROMER V. EVANS,” IS THAT
NO GOVERNMENT CAN MAKE ONE GROUP OF PEOPLE PARIAHS OR OUTCASTS
OR SECOND-CLASS CITIZENS. AND I THINK THAT THAT PRINCIPLE
SUGGESTS THAT ALL BANS ON SAME-SEX MARRIAGE
ARE UNCONSTITUTIONAL. AND, IN FACT,
JUSTICE SCALIA AGREES WITH THAT. HE THINKS THERE IS NO WAY TO DISTINGUISH THIS
DECISION AND LIMIT IT TO DOMA. – OK, WELL,
WE COULD JUST AS WELL DISCUSS THE NEXT
SAME-SEX MARRIAGE DECISION, “HOLLINGSWORTH V. PERRY”
IN OUR PANEL ON FEDERALISM. BUT THE TWO CASES HAVE BEEN
SO CLOSELY TIED TOGETHER IN THE PUBLIC DISCUSSION THAT WE ARE GOING
TO ADDRESS IT HERE. IN “HOLLINGSWORTH,”
VOTERS IN CALIFORNIA PASSED A BALLOT INITIATIVE
CALLED PROPOSITION 8, AMENDING THE STATE CONSTITUTION TO DEFINE MARRIAGE AS A UNION
BETWEEN A MAN AND A WOMAN. SAME-SEX COUPLES IN CALIFORNIA
WHO WANTED TO GET MARRIED CHALLENGED THE LAW
IN FEDERAL COURT AS A VIOLATION
OF THEIR DUE PROCESS AND EQUAL PROTECTION RIGHTS
UNDER THE FOURTEENTH AMENDMENT. CALIFORNIA’S GOVERNOR AND OTHER STATE OFFICIALS
WERE NAMED IN THE SUIT. BUT THOSE OFFICIALS REFUSED
TO DEFEND THE LAW IN COURT. SO THE DISTRICT COURT
ALLOWED THE PEOPLE WHO OFFICIALLY PROPOSED
PROPOSITION 8 TO INTERVENE TO DEFEND IT. AND THEY LOST. THE DISTRICT COURT DECLARED
PROPOSITION 8 UNCONSTITUTIONAL AND ORDERED ALL RELEVANT STATE
OFFICIALS AND THEIR SUBORDINATES NOT TO ENFORCE IT. THE PROPONENTS APPEALED TO THE NINTH CIRCUIT COURT
OF APPEALS AND LOST AGAIN. THEN THEY APPEALED
TO THE SUPREME COURT AND WERE GRANTED CERT. SUZANNA, CAN YOU TELL US
WHAT HAPPENED THERE? – WELL, TO DO THAT,
WE HAVE GO BACK A STEP TO THE NINTH CIRCUIT. THE NINTH CIRCUIT CERTIFIED
TO THE CALIFORNIA SUPREME COURT THE QUESTION
OF WHETHER THE SUPPORTERS OF A BALLOT INITIATIVE CAN REPRESENT THE INTERESTS
OF THE STATE–IN COURT– WHEN ELECTED OFFICIALS
REFUSE TO DO SO. THE CALIFORNIA SUPREME COURT ANSWERED AND SAID
THAT UNDER CALIFORNIA LAW, SUPPORTERS
OF A BALLOT INITIATIVE CAN REPRESENT THE STATE
IN THOSE CIRCUMSTANCES. AND SO THE NINTH CIRCUIT
RELYING ON THAT RULED THAT THE BALLOT SUPPORTERS HAD STANDING TO APPEAL
AND THEN WENT ON, AS YOU SAY, TO HOLD PROPOSITION 8
UNCONSTITUTIONAL. BUT THE UNITED STATES
SUPREME COURT DISAGREED ON THE STANDING QUESTION. THE MAJORITY SAID
THAT THE PROPONENTS OF THE BALLOT INITIATIVE
HAD NO STANDING BECAUSE THEY DIDN’T HAVE
ANY PARTICULARIZED INJURY. THEY WEREN’T INJURED IN ANY WAY OTHER THAN THE SAME WAY THAT ALL CITIZENS
OF CALIFORNIA MIGHT BE INJURED. THEY HAD A GENERALIZED
GRIEVANCE, WHICH IS NOT ENOUGH TO SATISFY
ARTICLE III STANDING. AND THE SUPREME COURT MAJORITY REJECTED TWO OTHER ARGUMENTS
AS WELL. THEY SAID THAT CALIFORNIA
CAN’T AUTHORIZE PRIVATE PARTIES TO REPRESENT ITS INTERESTS
IN FEDERAL COURTS AND THAT UNDER PRINCIPLES
OF AGENCY, THE BALLOT INITIATIVE SUPPORTERS DID NOT REPRESENT CALIFORNIA. – SO WHAT DID THE COURT
ACTUALLY ORDER? – WELL,
BECAUSE THE NINTH CIRCUIT DIDN’T HAVE JURISDICTION, THE SUPREME COURT HAD TO VACATE
THE NINTH CIRCUIT’S JUDGMENT AND THEN SEND IT BACK
TO THE NINTH CIRCUIT TO DISMISS THE APPEAL. – OK. JUSTICE KENNEDY, WHO IS FROM CALIFORNIA, WROTE THE DISSENT IN THIS CASE. ERWIN,
CAN YOU TELL US ABOUT THAT? – JUSTICE KENNEDY SAID, AS SUZANNA POINTED OUT, THAT THE CALIFORNIA
SUPREME COURT HELD THAT THE SUPPORTERS
OF THE INITIATIVE COULD REPRESENT THE INTERESTS
OF THE STATE AND DEFEND THE INITIATIVE, WHEN THE ELECTED GOVERNMENT
OFFICIALS REFUSED TO DO SO. JUSTICE KENNEDY SAID
THE INITIATIVE PROCESS EXISTS AS A CHECK
ON ELECTED OFFICIALS. ESPECIALLY WHEN ELECTED
OFFICIALS WON’T ACT, THE VOTERS CAN ACT DIRECTLY
TO PASS THE INITIATIVE. JUSTICE KENNEDY SAID IT’S NOT RIGHT THAT
IF A FEW ELECTED OFFICIALS CAN NULLIFY AN INITIATIVE, NULLIFY THE WILL
OF MILLIONS OF VOTERS, JUST BY CHOOSING
NOT TO DEFEND THE INITIATIVE. – OK, SO WHAT DOES THIS MEAN
FOR THE SAME-SEX COUPLE WHO ORIGINALLY
BROUGHT THIS LAWSUIT? – THOSE TWO SAME-SEX COUPLES
HAVE NOW GOTTEN MARRIED. THE SUPREME COURT
ON JUNE 26th DECIDED THIS CASE. ON FRIDAY, JUNE 28th, THE UNITED STATES COURT
OF APPEALS OF THE NINTH CIRCUIT LIFTED THE STAY THAT HAD BEEN IMPOSED
OF JUDGE WALKER’S ORDER ENJOINING THE ENFORCEMENT
OF PROP 8. SINCE THEN, SAME-SEX COUPLES,
INCLUDING THESE, HAVE BEEN ABLE TO MARRY. NOW, I DON’T THINK THIS IS
THE END OF THE LITIGATION. I THINK THERE’S GOING
TO CONTINUE TO BE LITIGATION ABOUT THE SCOPE OF THE DISTRICT
COURT’S INJUNCTION. JUST LAST FRIDAY, THE SUPPORTERS OF THE INITIATIVE
TO PROTECT MARRIAGE ASKED THE CALIFORNIA SUPREME
COURT ON AN EMERGENCY BASIS TO SAY THAT THE JUDGE’S ORDER WAS LIMITED
TO THOSE TWO SAME-SEX COUPLES, AND AT MOST THE TWO COUNTIES
THAT WERE NAMED AS DEFENDANTS. ON MONDAY OF THIS WEEK, THE CALIFORNIA SUPREME COURT
REFUSED TO ISSUE SUCH AN ORDER AND SAY THAT CLERKS
THROUGHOUT THE STATE, THEY COULDN’T ISSUE
MARRIAGE LICENSES. BUT LITIGATION OVER THE SCOPE
OF THE INJUNCTION CONTINUES IN THE CALIFORNIA
SUPREME COURT. AND I THINK IT MIGHT ALSO
AT SOME POINT GO BACK TO FEDERAL DISTRICT COURT. – AND LITIGATION’S ALSO
CONTINUING OUTSIDE OF CALIFORNIA, BECAUSE,
AFTER ALL, THE SUPREME COURT DIDN’T REACH THE MERITS. AND SO THE QUESTION OF WHETHER
BANS ON SAME-SEX MARRIAGE ARE CONSTITUTIONAL IS EVEN NOW BEING LITIGATED
IN OTHER STATES. AND I THINK THAT LITIGATION
WILL CONTINUE. – OK. OUR NEXT DECISION
INVOLVED AN ISSUE ARGUABLY AS CONTROVERSIAL
AS SAME-SEX MARRIAGE, AFFIRMATIVE ACTION. THE CASE WAS “FISHER
V. UNIVERSITY OF TEXAS.” ABIGAIL FISHER,
A YOUNG WHITE WOMAN, WAS DENIED ADMISSION
TO THE AUSTIN CAMPUS OF THE UNIVERSITY OF TEXAS. SHE SUED TO CHALLENGE THE SCHOOL’S
UNDERGRAD ADMISSIONS POLICY, WHICH IN KEEPING
WITH THE COURT’S 2003 DECISION IN “GRUTTER V. BOLLINGER” WAS ALLOWED
TO EXPLICITLY CONSIDER RACE AS A FACTOR IN ITS PERSONAL
ACHIEVEMENT INDEX. SO, EVAN, IS THIS STILL THE CASE
AFTER THIS DECISION? – IT IS. IT MIGHT BE HARDER. IT MIGHT BE A TOUGHER STANDARD
TO MEET AFTER THIS CASE. ONE OF THE CENTRAL POINTS IN
THE COURT’S “GRUTTER” DECISION WAS THAT ACHIEVING DIVERSITY
IN STUDENT POPULATIONS WAS A COMPELLING STATE INTEREST
FOR THE PURPOSES OF STRICT SCRUTINY. THE COURT STRONGLY REAFFIRMED
THAT HERE IN “FISHER.” BUT IT ALSO STRONGLY REAFFIRMED
THE USE OF STRICT SCRUTINY TO REVIEW ANY GOVERNMENTAL
CLASSIFICATION BASED ON RACE. SO THE COURT FOUND
THAT WHILE THE COURT OF APPEALS DID NOT ERR IN DEFERRING
TO UNIVERSITY OFFICIALS ON THE QUESTION OF WHETHER DIVERSITY SERVES
LEGITIMATE EDUCATIONAL GOALS, IT DID ERR IN DEFERRING
TO THE GOOD FAITH JUDGMENT OF UNIVERSITY OFFICIALS THAT THE USE OF RACE WAS NECESSARY
TO ATTAIN THAT DIVERSITY. – SO, SORT OF,
WHEN CAN RACE BE USED THEN? – WELL,
I THINK THE TAKE-HOME QUOTE FROM THIS DECISION IS THIS. I’M GOING TO QUOTE DIRECTLY
FROM THE CASE. “THE REVIEWING COURT
MUST ULTIMATELY BE SATISFIED “THAT NO WORKABLE RACE
NEUTRAL ALTERNATIVES WOULD PRODUCE THE EDUCATIONAL
BENEFITS OF DIVERSITY.” SO HERE THE COURT SEEMS TO SAY
THAT STRICT SCRUTINY APPLIES NOT ONLY TO THE MANNER IN WHICH UNIVERSITIES USE RACE
IN THE ADMISSIONS PROCESS, IT APPLIES TO THE VERY USE
OF RACE AT ALL IN ADMISSIONS, SO THAT COURTS, AND NOT
UNIVERSITY OFFICIALS, MUST ULTIMATELY DETERMINE
WHETHER THE SITUATION CALLS FOR THE USE OF RACE. – SO DID THE COURT
GIVE ANY GUIDANCE ON HOW CLOSE
THAT ANALYSIS MUST BE? – WELL, IT SAID–
YOU’RE NOT REQUIRED TO EXHAUST EVERY CONCEIVABLE
RACE-NEUTRAL ALTERNATIVE, BUT THE COURT
DOESN’T GIVE VERY MUCH GUIDANCE ON HOW TO BALANCE THAT
WITH THE REQUIREMENT THAT THERE BE NO WORKABLE
RACE-NEUTRAL ALTERNATIVES. I THINK THE COURT
SUMS IT UP BEST BY SAYING THAT WHILE STRICT SCRUTINY
ISN’T STRICT IN THEORY AND FATAL IN FACT, NEITHER SHOULD IT BE STRICT
IN THEORY AND FEEBLE IN FACT. – OK. THANK YOU. OUR FINAL TWO DECISIONS
IN THIS PANEL WEREN’T AS EAGERLY AWAITED
AS THE LAST THREE WE DISCUSSED, BUT IN TERMS OF THE DAY-TO-DAY
WORK OF FEDERAL JUDGES, THEY MAY PROVE
TO BE MORE SIGNIFICANT. IN THE FIRST, “VANCE
V. BALL STATE UNIVERSITY,” THE COURT NARROWED THE DEFINITION OF
WHO QUALIFIES AS A SUPERVISOR. MAETTA VANCE WORKED
IN THE CATERING DEPARTMENT AT BALL STATE
ALONGSIDE A FELLOW EMPLOYEE, SAUNDRA DAVIS, WHO VANCE COMPLAINED HARASSED
HER BECAUSE SHE WAS BLACK. THE SPECIFIC QUESTION
BEFORE THE COURT, HOWEVER, WAS WHETHER DAVIS, WHO SOMETIMES LED ACTIVITIES
IN THE KITCHEN BUT WHO BOTH SIDES AGREED
DID NOT HAVE THE POWER TO HIRE, FIRE, DEMOTE, PROMOTE, TRANSFER, OR DISCIPLINE VANCE, COULD NEVERTHELESS BE
CONSIDERED VANCE’S SUPERVISOR. ERWIN, CAN YOU TELL US WHY THAT
WAS AN IMPORTANT QUESTION? – THE LAW OF LIABILITY
FOR WORKPLACE HARASSMENT DRAWS A DISTINCTION BASED
ON WHETHER IT IS HARASSMENT BY A FELLOW EMPLOYEE
OR HARASSMENT BY A SUPERVISOR. IF IT’S HARASSMENT
BY A FELLOW EMPLOYEE, THE EMPLOYER IS LIABLE
ONLY IF IT CAN BE PROVEN THAT THE EMPLOYER WAS NEGLIGENT
IN CONTROLLING THE WORKPLACE. BUT IF IT’S HARASSMENT
BY A SUPERVISOR, THEN THE EMPLOYER
IS STRICTLY LIABLE IF A TANGIBLE ACTION
WAS TAKEN AGAINST THE EMPLOYEE. IN OTHER SITUATIONS, THE EMPLOYER
WILL HAVE AN AFFIRMATIVE DEFENSE AND CAN AVOID LIABILITY IF IT CAN SHOW
THAT IT TOOK REASONABLE STEPS TO PREVENT AND REMEDY
THE HARASSMENT AND THE EMPLOYEE FAILED TO USE THOSE REMEDIAL
STEPS THAT WERE AVAILABLE. – AND SO HERE THE COURT
IS LIMITING THE DEFINITION OF SUPERVISOR. – THAT’S RIGHT. THE COURT IS DEFINING
A SUPERVISOR IN THIS CASE AS SOMEONE WHO IS EMPOWERED TO TAKE A TANGIBLE
ADVERSE EMPLOYMENT ACTION. SO IMAGINE A SENIOR ASSOCIATE
IN A LAW FIRM IS HARASSING A JUNIOR ASSOCIATE. UNDER THIS RULING,
THE SENIOR ASSOCIATE PROBABLY WOULD NOT BE
CONSIDERED A SUPERVISOR BECAUSE HE DOESN’T HAVE THE POWER TO HIRE
OR FIRE THAT JUNIOR ASSOCIATE. – IT’S IMPORTANT
TO EMPHASIZE, THOUGH, THAT THIS DOESN’T MEAN
THAT THE EMPLOYER IS FREE FROM LIABILITY
IN SUCH HARASSMENT CASES. IT MEANS THAT THE EMPLOYER
WILL BE LIABLE ONLY IF IT CAN BE SHOWN
THAT THE EMPLOYER WAS NEGLIGENT IN CONTROLLING THAT WORKPLACE. – OK. AND, FINALLY
IN “THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER
V. NASSAR,” THE COURT WAS ASKED WHETHER A PLAINTIFF,
WHO BROUGHT A COMPLAINT OF RETALIATION
AGAINST HIS EMPLOYER, HAD TO PROVE IT WAS
ONLY ONE MOTIVATING REASON FOR HIS BEING FIRED
OR WAS THE SOLE “BUT FOR” REASON
HE WAS DISCHARGED. SUZANNA, IS THIS ANOTHER CHANGE
IN THE STANDARD OF PROOF DECISION? – WELL, IT’S A NEW STANDARD
OF PROOF. TRADITIONALLY, UNDER TITLE VII, PLAINTIFFS
WHO ARE ALLEGING DISCRIMINATION ON THE BASIS OF RACE OR GENDER
OR RELIGION, AND SO ON, THEY ONLY HAVE HAD TO SHOW,
AND STILL HAVE TO SHOW, ONLY THAT RACE OR GENDER OR WHATEVER IS ONE
OF THE MOTIVATING FACTORS BEHIND THE DECISION. WHAT THE COURT SAYS IN THIS CASE IS THAT IN RETALIATION CASES,
THE STANDARD IS DIFFERENT. IN A RETALIATION CASE, THE STANDARD OF PROOF IS
THAT THE PLAINTIFF HAS TO SHOW THAT IT WAS A “BUT FOR” CAUSE OF
THE ADVERSE EMPLOYMENT ACTION. – I THINK THAT’S GOING TO HAVE
A SIGNIFICANT PRACTICAL EFFECT ON LITIGATION. I THINK EMPLOYERS
ARE NOW GOING TO COME FORWARD AND PUT FORTH ALL SORTS OF REASONS WHY THEY WOULD
HAVE TAKEN THE ACTION ANYWAY. I THINK IT’S GOING TO MEAN
THAT A LOT MORE OF THESE CASES ARE GOING TO BE DECIDED
AS SUMMARY JUDGMENT IN FAVOR OF THE EMPLOYERS. – OK. SO JUST TO CLOSE
WITH THIS CASE, JUSTICE GINSBURG WROTE STRONG DISSENTS IN BOTH
OF THESE EMPLOYMENT CASES. ANYBODY WANT TO TALK ABOUT THAT? – SHE DID.
IN “VANCE, “SHE WROTE– AND I QUOTE, THAT A “SUPERVISOR “WITH AUTHORITY TO CONTROL
SUBORDINATES’ DAILY WORK “IS NOT LESS AIDED
IN HIS HARASSMENT “THAN IS A SUPERVISOR
WITH AUTHORITY TO FIRE, DEMOTE, OR TRANSFER.” – JUSTICE GINSBURG ALSO ARGUED
THAT UP UNTIL THIS DECISION, THE COURT
HAD NEVER DRAWN THE DISTINCTION BETWEEN DISCRIMINATION CLAIMS
AND RETALIATION CLAIMS UNDER EMPLOYMENT
DISCRIMINATION LAW. IN BOTH OF THESE CASES, SHE ARGUED THAT CONGRESS
SHOULD REVISE THE EMPLOYMENT DISCRIMINATION LAWS
TO OVERCOME AND CHANGE THE LAW AS FOUND BY THE MAJORITY. – OK, WELL, LET’S NOW TAKE SOME QUESTION
FROM OUR VIEWERS. JIM? – WE HAVE ONE CONCERNING DOMA. IT SAYS, “LOOKING AHEAD,
DOESN’T SECTION 2 OF DOMA CLEARLY VIOLATE THE FULL FAITH
AND CREDIT CLAUSE?” – WELL, I THINK
THE MORE IMPORTANT QUESTION IS WHETHER IT VIOLATES
THE EQUAL PROTECTION CLAUSE. THAT IS,
I THINK THAT THE REASONING– SECTION 2 OF DOMA
SAYS THAT– STATES DO NOT HAVE TO RESPECT
THE MARRIAGE DECISIONS OF OTHER STATES WHEN IT
COMES TO SAME-SEX MARRIAGE. BUT THE FULL FAITH AND CREDIT
CLAUSE OF THE CONSTITUTION DOES GIVE CONGRESS SOME POWER
OVER FULL FAITH AND CREDIT BETWEEN STATES. SO I THINK THAT IT’S NOT SO MUCH ABOUT WHETHER SECTION 2 VIOLATES
THE FULL FAITH AND CREDIT CLAUSE AS TO WHETHER THE REASONING
THAT INVALIDATED SECTION 3 WILL ALSO SERVE
TO INVALIDATE SECTION 2 BECAUSE, AGAIN, SECTION 2, LIKE SECTION 3, IS SINGLING OUT
ONE PARTICULAR TYPE OF MARRIAGE AND MAKING
IT LESS WORTHY OF RESPECT. – I AGREE AND DISAGREE. I COMPLETELY AGREE THAT I THINK
ONCE THE SUPREME COURT SAID THAT SECTION 3 OF DOMA
IS UNCONSTITUTIONAL, BECAUSE DOMA SERVES
NO LEGITIMATE PURPOSE, IT’S HARD TO IMAGINE HOW THE COURT
COULD THEN UPHOLD SECTION 2. BUT THE PLACE
WHERE I DISAGREE IS THE SENTENCE IN ARTICLE 4 THAT SUCCEEDS FROM, FOLLOWS FROM,
THE FULL FAITH AND CREDIT CLAUSE THAT GIVES CONGRESS THE POWER
TO INTERPRET IT, ENFORCE IT, HAS NEVER BEEN CONSTRUED
BY THE SUPREME COURT. AND SO
WHAT CONGRESSIONAL AUTHORITY EXISTS UNDER THE FULL FAITH
AND CREDIT CLAUSE TO PASS SECTION 2 OF DOMA
IS STILL AN OPEN QUESTION. – THANKS. THERE WAS ONE OTHER EMAIL
WE GOT. AND I THINK THAT SOMETHING ERWIN
SAID TOUCHED ON THIS, BUT I’LL THROW IT OUT THERE. “FOLLOWING THE SUPREME COURT’S DECISION IN “NASSAR,”
DOES THE “BUT FOR” CAUSATION STANDARD COME INTO PLAY
IN THE PRIMA FACIE, OR PRETEXT, STAGE IN THE ANALYSIS?” – WELL, WHAT’S INTERESTING IS UNDER “PRICE WATERHOUSE
V. HOPKINS,” IF IT IS A DISCRIMINATION CLAIM, THERE CAN BE MIXED MOTIVES. AND THEN TO DETERMINE
WHAT’S A PRETEXT IS DONE
BY ACTUALLY SHIFTING THE BURDEN. I READ THE “NASSAR” CASE AS SAYING
THAT THAT MIXED MOTIVE ANALYSIS, THE “PRICE WATERHOUSE
V. HOPKINS” APPROACH FOUND IN THE 1991 CIVIL RIGHTS
ACT, DOESN’T APPLY AT ALL, THAT IN THE CONTEXT
OF A RETALIATION CLAIM, THERE HAS TO BE “BUT FOR” CAUSATION
BOTH ALLEGED AND PROVEN. – I AGREE WITH ERWIN.
I THINK THAT’S ABSOLUTELY RIGHT. – THANK YOU. – THAT’S ALL THE QUESTIONS
WE HAVE TIME FOR NOW. THANK YOU, JIM. COMING UP NEXT IS THE PANEL ON FEDERALISM
AND THE FEDERAL COURTS. – I THINK WE’RE DEALING
WITH TWO DIFFERENT QUESTIONS. ONE IS WAS THAT KIND
OF REMEDY, AN UNUSUAL REMEDY, NEVER BEFORE AND NEVER
AFTER INVOKED BY THE CONGRESS, PUTTING STATES
INTO A PRIOR RESTRAINT IN THE EXERCISE OF THEIR CORE
SOVEREIGN FUNCTIONS, WAS THAT JUSTIFIED? AND IN “KATZENBACH,”
THE COURT SAID WE’RE CONFRONTING AN EMERGENCY IN THE COUNTRY, WE’RE CONFRONTING PEOPLE
WHO WILL NOT, WHO WILL NOT HONOR
THE FIFTEENTH AMENDMENT AND WHO WILL USE… – AND IN 1986– OR EXCUSE ME, 2006–CONGRESS
WENT BACK TO THE PROBLEM, DEVELOPED A VERY SUBSTANTIAL
RECORD, A 15,000-PAGE
LEGISLATIVE RECORD, TALKED ABOUT WHAT PROBLEMS
HAD BEEN SOLVED, TALKED ABOUT WHAT PROBLEMS
HAD YET TO BE SOLVED, AND DECIDED THAT, ALTHOUGH THE PROBLEM
HAD CHANGED, THE PROBLEM WAS STILL EVIDENT ENOUGH
THAT THE ACT SHOULD CONTINUE. IT’S HARD TO SEE HOW CONGRESS COULD HAVE DEVELOPED A BETTER AND MORE THOROUGH
LEGISLATIVE RECORD THAN IT DID, MR. REIN. – WELL, I’M NOT QUESTIONING
WHETHER CONGRESS DID ITS BEST. THE QUESTION IS
WHETHER WHAT CONGRESS FOUND WAS ADEQUATE
TO INVOKE THIS UNUSUAL REMEDY. – INDEED, CONGRESS MUST HAVE
FOUND THAT THE SITUATION WAS EVEN CLEARER
AND THE VIOLATIONS EVEN MORE EVIDENT
THAN ORIGINALLY BECAUSE, ORIGINALLY, THE VOTE
IN THE SENATE, FOR EXAMPLE, WAS SOMETHING LIKE 79 TO 18, AND IN THE 2006 EXTENSION, IT WAS 98 TO NOTHING. IT MUST HAVE
BEEN EVEN CLEARER IN 2006 THAT THESE STATES
WERE VIOLATING THE CONSTITUTION. DO YOU THINK THAT’S TRUE? – NO. I THINK THE COURT
HAS TO… – WELL, THAT SOUNDS LIKE A GOOD
ARGUMENT TO ME, JUSTICE SCALIA. IT WAS CLEAR TO 98 SENATORS, INCLUDING EVERY SENATOR
FROM A COVERED STATE, WHO DECIDED
THAT THERE WAS A CONTINUING NEED FOR THIS PIECE OF LEGISLATION. – OR DECIDED THAT PERHAPS THEY’D
BETTER NOT VOTE AGAINST IT, THAT THERE’S NOTHING,
THAT THERE’S NO– NONE OF THEIR INTERESTS
IN VOTING AGAINST IT. – THE VOTING RIGHTS ACT OF 1965 WAS ONE OF THE MOST
SIGNIFICANT FEDERAL LAWS TO COME OUT THE CIVIL RIGHTS
MOVEMENT OF THE 1950s AND ’60s. AN ATTEMPT TO END A CENTURY OF DISCRIMINATION
AGAINST RACIAL MINORITIES AT THE BALLOT BOX, THE ACT FIRST PROHIBITED
STATE AND LOCAL GOVERNMENTS FROM PRACTICES THAT UNDERCUT
THE FRANCHISE OF THOSE GROUPS. BUT WHEN SUING TO ENFORCE
THAT PROHIBITION PROVED INSUFFICIENT
TO EFFECTUATE THE ACT, CONGRESS ADDED A NEW AUTHORITY. SECTION 5 OF THE ACT
REQUIRED CERTAIN STATES AND LOCALITIES WITH A HISTORY
OF VOTING DISCRIMINATION TO SEEK PRECLEARANCE
FROM THE JUSTICE DEPARTMENT BEFORE THEY COULD INITIATE
ANY NEW LAWS IN THIS AREA. THE FORMULA DEFINING
WHICH JURISDICTIONS WERE COVERED BY SECTION 5
WAS IN SECTION 4 OF THE ACT. NOW, THE ACT HAD BEEN
REAUTHORIZED FOUR TIMES BY CONGRESS, MOST RECENTLY, AS YOU HEARD IN THE ARGUMENT
THERE, IN 2006. THIS TERM, IN A CASE TITLED
“SHELBY COUNTY V. HOLDER,” THE SUPREME COURT STRUCK DOWN
THE SECTION 4 FORMULA AS UNCONSTITUTIONAL. WHAT WAS THE COURT’S REASONING,
ERWIN? – CHIEF JUSTICE ROBERTS
WROTE FOR THE COURT. AND HE SAID CONGRESS
IN EXTENDING SECTION 4(b) HAD NOT DEALT
WITH THE CHANGED CIRCUMSTANCES. HE SAID THAT SECTION (b)’s
FORMULA WAS BASED ON DATA FROM THE 1960s
AND THE 1970s. HE SAID AS AN EXAMPLE, SOME OF THE COVERED
JURISDICTIONS HAD HIGHER RATES IN MINORITY VOTER REGISTRATION THAN SOME JURISDICTIONS
THAT WEREN’T COVERED BY THE ACT. – HE ALSO POINTED OUT
THAT IN THE FIRST DECADE AFTER THE ACT WAS PASSED,
THE ATTORNEY GENERAL DENIED PRECLEARANCE
IN 14% OF THE APPLICATIONS. AND IN THE MOST RECENT DECADE, THAT HAD DROPPED
TO FEWER THAN 1% OF THE APPLICATIONS
BEING DENIED. – AND THAT LED
TO THE CONCLUSION, THEN, THAT SECTION 4(b)
IS UNCONSTITUTIONAL, IS EXCEEDING THE SCOPE
OF CONGRESS’ POWERS, AND VIOLATING
THE TENTH AMENDMENT. – BUT JUSTICE GINSBURG WROTE A VERY STRONG DISSENT
IN THIS CASE. – YES, SHE DID. SHE URGED DEFERENCE TO CONGRESS. SHE SAID CONGRESS
HELD OVER 12 HEARINGS IN AN 11-MONTH PERIOD, COMPILED A RECORD THAT WAS
ALMOST 16,000 PAGES LONG. SHE TALKED OF HOW THE VOTE
IN THE SENATE WAS 98-0, THERE WERE ONLY 33 NO VOTES
IN THE HOUSE. SHE SAID IN LIGHT OF THIS, THE COURT SHOULD DEFER
TO CONGRESS, WHO SHOULD HAVE ALLOWED
THE FORMULA TO SECTION 4(b) TO STAND. – SO THE COURT RULED
THAT THE FORMULA IN SECTION 4 WAS UNCONSTITUTIONAL BUT NOT THE ACTUAL PRECLEARANCE
AUTHORITY IN SECTION 5, RIGHT? – THAT’S CORRECT,
THOUGH ONCE SECTION 4(b) IS DECLARED UNCONSTITUTIONAL, THAT EFFECTIVELY
NULLIFIES SECTION 5 BECAUSE THEN THERE’S NO JURISDICTIONS
THAT HAVE TO GET PRECLEARANCE. – AND I THINK IT’S WORTH
POINTING OUT THAT THE REASON THAT CONGRESS
DIDN’T CHANGE THE FORMULA IN 4(b) IN THIS MOST
RECENT REAUTHORIZATION WAS BECAUSE THEY COULDN’T AGREE
ON A NEW FORMULA. – THE COURT REACHED
ANOTHER DECISION THAT AFFECTED VOTING RIGHTS
THIS TERM. IT WAS “ARIZONA V. THE INTERTRIBAL COUNCIL
OF ARIZONA.” THIS TIME THE COURT CAME DOWN IN FAVOR OF THE FEDERAL
GOVERNMENT’S POWER OVER STATES IN FEDERAL ELECTIONS. SUZANNA? – WELL, UNDER THE NATIONAL VOTER
REGISTRATION ACT OF THE NVRA, WHICH IS ALSO KNOWN
AS THE MOTOR VOTER LAW, STATES ARE REQUIRED TO “ACCEPT
AND USE” A UNIFORM FEDERAL FORM TO REGISTER VOTERS
FOR FEDERAL ELECTIONS. NOW, THIS PARTICULAR FORM REQUIRES VOTERS TO STATE
THAT THEY’RE CITIZENS, BUT IT DOESN’T REQUIRE–THEM
TO PROVIDE ANY DOCUMENTATION. SO ARIZONA PASSED A LAW
REQUIRING REGISTRANTS FOR VOTING TO PROVIDE DOCUMENTATION
PROVING CITIZENSHIP. AND THE QUESTION HERE WAS
WHETHER THE MOTOR VOTER LAW PREEMPTED ARIZONA’S LAW. – AND WE ALREADY SAID IT DOES. BUT WHAT DID ARIZONA ARGUE? – WELL, ARIZONA ARGUED CORRECTLY THAT CONGRESS DOES NOT HAVE
THE POWER TO SET QUALIFICATIONS. CONGRESS CAN REGULATE THE TIME,
PLACE, AND MANNER OF FEDERAL ELECTIONS BUT CAN’T SET THE QUALIFICATIONS
FOR VOTERS. ONLY THE STATES CAN DO THAT. AND ARIZONA SAID
THAT IT CAN’T DO THAT, IT CAN’T SET QUALIFICATIONS, IF IT CAN’T ENFORCE
THE QUALIFICATIONS. AND IT CAN’T
ENFORCE THE QUALIFICATIONS UNLESS IT HAS SOME KIND
OF DOCUMENTATION. – WHAT WAS THE COURT’S RESPONSE? – THE MAJORITY
LOOKED VERY CAREFULLY AT THE LANGUAGE OF THE STATUTE UNDER ESTABLISHED DOCTRINES
OF STATUTORY INTERPRETATION AND CONCLUDED THAT THE TERM
“ACCEPT AND USE” MEANS THAT THE STATES HAVE TO ACCEPT
THAT FORM AS SUFFICIENT AND CAN’T ADD ANY REQUIREMENTS. AND THE COURT ADDED THAT
THE STATES DO HAVE OTHER WAYS– ARIZONA HAS OTHER WAYS
TO ENFORCE ITS QUALIFICATIONS. A STATE CAN ASK THE FEDERAL
ELECTION ASSISTANCE CORPORATION TO ALTER THE FORM
TO REQUIRE DOCUMENTATION. AND IF THE CORPORATION
REFUSES TO DO SO, THE STATE CAN CHALLENGE
THAT DECISION UNDER THE APA. SO I THINK THIS IS NOT THE LAST
WE’VE SEEN OF THIS QUESTION. – THE ALIEN TORT STATUTE IS ONE OF THE OLDEST FEDERAL
LAWS STILL ON THE BOOKS. IT WAS PASSED AS PART
OF THE JUDICIARY ACT OF 1789 AND PROVIDES IN FULL
THAT “THE DISTRICT COURTS “SHALL HAVE ORIGINAL
JURISDICTION OF ANY CIVIL ACTION “OF AN ALIEN FOR A TORT ONLY, “COMMITTED IN VIOLATION
OF THE LAW OF NATIONS OR A TREATY
OF THE UNITED STATES.” IN OUR NEXT DECISION “KIOBEL
V. ROYAL DUTCH PETROLEUM,” THE QUESTION BEFORE THE COURT WAS WHETHER AND UNDER WHAT
CIRCUMSTANCES DISTRICT COURTS MAY RECOGNIZE A CAUSE OF ACTION
UNDER THE ALIEN TORT STATUTE FOR VIOLATIONS OF THE LAWS OF NATIONS OCCURRING
IN ANOTHER SOVEREIGN TERRITORY. IN THIS CASE, SHELL OIL
WAS SUED BY NIGERIAN REFUGEES WHO SOUGHT ASYLUM
IN THE UNITED STATES AFTER SUFFERING BRUTAL TREATMENT
BY NIGERIAN FORCES. SHELL OIL ALLEGEDLY AIDED AND ABETTED THE FORCES
WITH FOOD, TRANSPORTATION, AND COMPENSATION. THE REFUGEES HAD BEEN PROTESTING
THE ENVIRONMENTAL IMPACT OF SHELL’S DRILLING
IN THEIR COUNTRY. EVAN, DID THE COURT FIND
THAT KIOBEL COULD SUE SHELL IN THE UNITED STATES’ COURTS
UNDER THE ALIEN TORT STATUTE? – NO. AND THE COURT WAS UNANIMOUS ON THIS, AT LEAST WITH RESPECT
TO THE RESULT, WITH CHIEF JUSTICE ROBERTS
WRITING. THE COURT SAID
THAT THERE IS A PRESUMPTION AGAINST THE EXTRATERRITORIAL
APPLICATION OF U.S. LAW AND THAT THAT PRESUMPTION APPLIES TO THE ALIEN TORT
STATUTE, THAT NOTHING IN THIS STATUTE
REBUTS THAT PRESUMPTION. – BUT, EVAN, EVERYONE ALSO AGREES THAT WHEN THE ALIEN TORT
STATUTE WAS FIRST WRITTEN, ONE OF ITS PRIME PURPOSES WAS TO
DEAL WITH PROSECUTING PIRATES. AND PIRATES OPERATE OUTSIDE THE
TERRITORY OF THE UNITED STATES. – THAT IS TRUE. AND THE MAJORITY
CONCEDED THAT POINT. BUT IT SAID THESE PIRATES
WERE SUI GENERIS BECAUSE THEY OPERATED
ON THE HIGH SEAS OUTSIDE OF ANY SOVEREIGN TERRITORY AND THEREFORE WOULDN’T INVOLVE CLASHES
WITH ANY FOREIGN NATIONS. – OK. SO THEN WHAT DID THE COURT SAY THE ORIGINAL PURPOSE
OF THE ACT WAS? – THE MAJORITY SAID THAT
THERE WERE MORE MODEST GOALS FOR THE ATS AT ITS INCEPTION, FOR EXAMPLE PROVIDING FOREIGN AMBASSADORS SERVING
IN THE UNITED STATES WITH A WAY TO RECOVER FOR TORTS COMMITTED
AGAINST THEM ON AMERICAN SOIL. – I SHOULD DISCLOSE HERE
THAT I WAS CO-COUNSEL FOR KIOBEL IN THE SUPREME COURT. AND I THINK IT IMPORTANT
TO EMPHASIZE THAT I DON’T THINK THIS IS THE END
OF ALIEN TORT STATUTE LITIGATION IN FEDERAL COURT. CHIEF JUSTICE ROBERTS IN PART 4
OF HIS MAJORITY OPINION SAID THERE MAY BE INSTANCES WHERE THE CONNECTIONS
TO THE UNITED STATES ARE CLOSE ENOUGH TO OVERCOME
THE PRESUMPTION AGAINST EXTRATERRITORIALITY. JUSTICE KENNEDY,
THE FIFTH JUSTICE FOR THE MAJORITY OPINION, WROTE A VERY SHORT,
ENIGMATIC CONCURRING OPINION. HE SAID,
THERE ARE MANY QUESTIONS LEFT OPEN ABOUT WHEN ATS SUITS
CAN STILL GO FORWARD. – WELL, ENIGMATIC AS IT MAY BE,
IT’S THE SWING VOTE HERE. AND SO IT’S CONTROLLING. AND JUSTICE KENNEDY
WOULD LEAVE ROOM FOR THE EXTRATERRITORIAL
APPLICATION OF THE ATS IN CASES THAT INVOLVE SERIOUS VIOLATIONS OF INTERNATIONAL PRINCIPLES
PROTECTING PERSONS BUT COVERED NEITHER BY THE
TORTURE VICTIMS PROTECTION ACT NOR BY THE MAJORITY’S RATIONALE
IN THIS CASE. – AND I THINK IT’S
THAT AMBIGUITY THAT’S GOING TO LEAD
TO A GREAT DEAL OF LITIGATION IN THE FEDERAL DISTRICT COURT. IMAGINE IT’S A UNITED STATES
COMPANY ENGAGED IN HUMAN RIGHTS
VIOLATIONS IN FOREIGN COUNTRIES. THEN THERE MIGHT BE ENOUGH
TO OVERCOME THE PRESUMPTION AGAINST EXTRATERRITORIALITY. – AND WE’LL HAVE TO WATCH THAT. OUR NEXT DECISION ALSO ADDRESSES
A JURISDICTIONAL QUESTION: DOES A CASE
ARISE UNDER FEDERAL LAW WHEN A FEDERAL QUESTION IS EMBEDDED
IN A STATE CAUSE OF ACTION? THE CASE WAS “GUNN V. MINTON.” VERNON MINTON SUED JERRY GUNN IN TEXAS STATE COURT
FOR LEGAL MALPRACTICE. MINTON CLAIMED THAT
GUNN’S FAILURE TO ARGUE
THE EXPERIMENTAL USE EXCEPTION AT AN EARLIER STAGE IN MINTON’S PATENT INFRINGEMENT
SUIT LOST HIM THE CASE. MINTON LOST THE MALPRACTICE SUIT
WHEN THE STATE COURT RULED THAT HE HAD NOT PRESENTED
A SCINTILLA OF EVIDENCE THAT THE EXPERIMENTAL USE
EXCEPTION APPLIED IN HIS CASE. SO THAT WAS WHEN MINTON SWITCHED TACTICS AND ARGUED
THAT BECAUSE HIS STATE COURT LEGAL MALPRACTICE CLAIM WAS BASED ON AN ALLEGED ERROR
IN A PATENT CASE, IT “ARISE(S)
UNDER” FEDERAL PATENT LAW AND THAT THE TEXAS COURT LACKED
SUBJECT MATTER JURISDICTION TO DECIDE THE CASE. HE WANTED THE TEXAS STATE
COURT DECISION VACATED SO HE COULD START ALL OVER AGAIN
IN FEDERAL DISTRICT COURT. SO, SUZANNA, HOW DID THE SUPREME
COURT SEE THIS CASE? – WELL, THIS IS ANOTHER CASE
WHERE THEY WERE UNANIMOUS. AND THIS TIME,
THEY WERE UNANIMOUS ON THE REASONING AS WELL. THEY APPLIED THE TEST FROM THE 2005 CASE OF
“GRABLE AND SONS METAL PRODUCTS V. DARUE ENGINEERING.” AND THAT TEST SAYS THAT IN ORDER
FOR A STATE LAW CLAIM IN WHICH THERE’S
AN EMBEDDED FEDERAL QUESTION, TO “ARISE UNDER” FEDERAL LAW, FOUR THINGS HAVE TO BE TRUE. THERE HAS TO BE A FEDERAL ISSUE
RAISED; THE FEDERAL ISSUE
HAS TO BE ACTUALLY DISPUTED; THE FEDERAL ISSUE
HAS TO BE SUBSTANTIAL; AND THE ADJUDICATION
IN FEDERAL COURT OF THIS CASE WON’T DISRUPT THE BALANCE
BETWEEN FEDERAL COURTS AND STATE COURTS
SET UP BY CONGRESS. – AND THEY FOUND
THAT THE FIRST TWO CRITERIA MET. – THAT’S RIGHT.
THAT’S RIGHT. THE COURT AGREED THAT THERE WAS
A FEDERAL ISSUE THAT WAS RAISED AND THAT WAS ACTUALLY DISPUTED. BUT THE PROBLEM CAME– WHEN THEY HELD THAT THE FEDERAL
ISSUE WASN’T SUBSTANTIAL. THEY CLARIFIED “GRABLE”
A LITTLE BIT AND SAID THAT THE FEDERAL ISSUE HAS TO BE SUBSTANTIAL TO
THE FEDERAL SYSTEM AS A WHOLE. IT’S NOT ENOUGH FOR IT
JUST TO MATTER A LOT AND BE SUBSTANTIAL
TO THE PARTIES IN THE PARTICULAR CASE. AND THE COURT HERE SAID
THAT IT WASN’T SUBSTANTIAL TO THE FEDERAL SYSTEM AS A WHOLE BECAUSE NO MATTER
WHAT THE STATE COURT DECIDED, IT WASN’T GOING TO AFFECT
WHAT HAD ALREADY HAPPENED IN THIS PATENT CASE AND IT WASN’T GOING TO BIND
ANY FEDERAL COURTS. IT WASN’T GOING TO AFFECT WHAT
HAPPENED IN FUTURE PATENT CASES. SO IT WASN’T GOING
TO CHANGE ANYTHING. SO IT WASN’T SUBSTANTIAL. AND MORE THAN THAT, IT WAS GOING
TO DISRUPT THE BALANCE BETWEEN FEDERAL
AND STATE COURTS. THE COURT SAID
THAT REGULATING LAWYERS IS TRADITIONALLY LEFT
TO THE STATES AND THAT THERE WAS NO INDICATION THAT WHEN CONGRESS GAVE
EXCLUSIVE PATENT JURISDICTION TO THE FEDERAL COURTS THAT THEY MEANT TO TAKE SOME
OF THE REGULATION OF LAWYERS AWAY FROM THE STATES. – SO WHAT DO YOU THINK
THE LARGER SIGNIFICANCE OF THE CASE IS? – WELL, I THINK THIS CONFIRMS
SOMETHING THAT’S SORT OF BEEN BEING SHOWN FOR A WHILE, WHICH IS THAT THE “GRABLE” TEST
IS VERY HARD TO SATISFY AND THAT IT’S VERY UNLIKELY THAT ANY OTHER EMBEDDED
FEDERAL QUESTIONS WILL GIVE RISE TO FEDERAL
QUESTION JURISDICTION. – OK. OUR LAST DECISION
DEALING WITH THE FUNCTIONS OF THE FEDERAL COURTS
IS “UNITED STATES V. DAVILA.” THE ROLE OF NEUTRAL ARBITER IS, OF COURSE, CENTRAL
TO BEING A FEDERAL JUDGE. AND AMONG THE RULES
THAT CODIFY THAT ROLE IS 11(c)(1) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, WHICH INSTRUCTS THAT “THE COURT MUST NOT PARTICIPATE
IN PLEA DISCUSSIONS.” THE ISSUE BEFORE THE JUSTICES
IN “DAVILA” WAS WHAT SHOULD HAPPEN
WHEN A JUDGE VIOLATES THAT RULE. SHOULD THE PLEA
BE AUTOMATICALLY VACATED OR SHOULD THE RESPONSE DEPEND
ON THE PARTICULAR CIRCUMSTANCES SURROUNDING ITS ENTRY? ANTHONY DAVILA PLED GUILTY
TO TAX FRAUD BECAUSE, HE CLAIMED, A U.S. MAGISTRATE JUDGE
IN AN IN-CAMERA PRE-PLEA HEARING TOLD HIM HIS BEST OPTION, GIVEN THE STRENGTH
OF THE GOVERNMENT’S CASE, WAS TO PLEAD GUILTY. ON APPEAL THE GOVERNMENT CONCEDED THAT THE MAGISTRATE
JUDGE HAD VIOLATED THE RULE BY RECOMMENDING A GUILTY PLEA
TO THE DEFENDANT. AND THE COURT OF APPEALS APPLIED
AN AUTOMATIC VACATUR RULE. SO, EVAN, DID THE SUPREME COURT AGREE
WITH THAT AUTOMATIC VACATUR? – WELL, THE SUPREME COURT TOOK
A LITTLE BIT MORE NUANCED VIEW OF IT BASED ON THE INTERPLAY
OF A NUMBER OF FEDERAL RULES HERE. 11(c)(1) DOES SAY THAT THE COURT MUST NOT
PARTICIPATE IN PLEA DISCUSSIONS. BUT RULE 11(h) SAYS THAT A VARIANCE
FROM THAT REQUIREMENT IS HARMLESS ERROR IF IT “DOES
NOT AFFECT SUBSTANTIAL RIGHTS.” SO 11(h) APPLIES RULE 52’s
GENERAL HARMLESS ERROR EXCEPTION TO 11(c)(1) PLEA BARGAIN ERRORS. – EVAN,
THERE IS MORE THAN ONE PART TO THE RULE 52
HARMLESS ERROR EXCEPTION. WHICH PART WAS THE COURT
APPLYING HERE? – BOTH. THE COURT RULED THAT IF
A DEFENDANT RAISED THE ERROR IN A TIMELY MANNER, THEN RULE 52(a) APPLIES AND THE GOVERNMENT
HAS THE BURDEN OF SHOWING THE ERROR
TO HAVE BEEN HARMLESS. BUT IF THE DEFENDANT
DOES NOT RAISE THE ERROR IN A TIMELY MANNER, THEN 52(b) APPLIES AND THE DEFENDANT
WILL HAVE THE BURDEN OF SHOWING
THAT IT WAS PREJUDICIAL. ACCORDING TO THE MAJORITY,
NOTHING IN THE TEXT OF RULE 11 INDICATED THAT IF A JUDGE VIOLATED IT BY BEING
INVOLVED IN THE PLEA DISCUSSIONS THAT VACATUR
OF THE PLEA WAS AUTOMATIC. NOW, IN DAVILA’S CASE, THREE MONTHS HAD PASSED
BETWEEN THE IN-CAMERA MEETING WITH THE MAGISTRATE JUDGE AND, ON THE OTHER HAND,
DAVILA PLEADING GUILTY. HE PLED BEFORE A DISTRICT JUDGE WHO ASKED DAVILA PRETTY MUCH WHAT YOU’D EXPECT TO BE ASKED
AT ONE OF THOSE COLLOQUIES, IF HE HAD BEEN PRESSURED
OR FORCED INTO PLEADING GUILTY. DAVILA SAID NO. NOTHING IN THE RECORD SUGGESTED
THAT THE DISTRICT JUDGE KNEW ANYTHING ABOUT THE MEETING THAT DAVILA HAD HAD
WITH THAT MAGISTRATE JUDGE. THE APPEALS COURT,
SAID THE JUSTICES, REASONABLY SHOULD HAVE CONSIDERED
IF IT WAS REASONABLY PROBABLE THAT BUT FOR THE MAGISTRATE
JUDGE’S SUGGESTIONS DAVILA WOULD NOT HAVE PLED GUILTY. THE MAGISTRATE JUDGE’S COMMENTS SHOULD HAVE BEEN ASSESSED
IN LIGHT OF THE ENTIRE RECORD AND NOT IN ISOLATION. – THANKS, EVAN. I THINK WE HAVE A FEW QUESTIONS. – WE HAVE ONE HERE FROM
TEXAS ABOUT “SHELBY COUNTY.” FIRST OF ALL, I’M GOING
TO SEND THIS TO YOU, ERWIN. “IN LIGHT OF THE DECISION
IN ‘SHELBY COUNTY,’ “ARE SUITS SEEKING
TO ENJOIN AN ELECTION “BECAUSE THE STATE ENTITY “FAILED TO SEEK JUDICIAL
OR ADMINISTRATIVE PRECLEARANCE RENDERED MOOT?” – YES. THE PRECLEARANCE REQUIREMENT
NO LONGER HAS ANY EFFECT BECAUSE SECTION 4(b) DETERMINES WHICH JURISDICTION
WOULD NEED PRECLEARANCE. AND SECTION 4(b) HAS BEEN
DECLARED UNCONSTITUTIONAL. BUT I DO THINK WHAT YOU’LL SEE,
THEN, IS AN INCREASE IN LITIGATION UNDER SECTION 2
OF THE VOTING RIGHTS ACT. SINCE THERE ARE NOT GOING
TO BE JURISDICTIONS THAT WILL HAVE PLANS
DENIED THROUGH PRECLEARANCE, THOSE SAME PLANS WILL NOW OFTEN
LIKELY BE SUBJECTED TO CHALLENGE UNDER SECTION 2
OF THE VOTING RIGHTS ACT. – GREAT. THANK YOU. THAT’S ALL THE QUESTIONS WE HAVE
FOR THIS PANEL ON THIS SUBJECT. – OK. THANKS, JIM. UP NEXT, WE ARE GOING TO LOOK
AT SOME CLASS ACTION DECISIONS. – UNLIKE SOME COURTS, BOTH THE DISTRICT COURT
AND THE CIRCUIT COURT SAID THAT THE PLAINTIFFS
NEEDED TO SHOW THAT THERE WAS A CLASS-WIDE
MEASUREMENT OF DAMAGES. AND THEN IN ADDITION, BOTH COURTS SAID,
REALLY, IT WAS– THE BURDEN WAS ON THE PLAINTIFFS TO DEMONSTRATE
THAT THAT CLASS-WIDE MEASURE OF DAMAGES EXISTED. NOW, I UNDERSTAND THAT YOU
HAVE PROBLEMS WITH THE WAY IN WHICH THE PLAINTIFFS
MET THAT BURDEN. YOU SAY THAT THEY
DIDN’T MEET THAT BURDEN. BUT IT SEEMS TO ME
THAT THE LEGAL STANDARD THAT WAS USED
WAS EXACTLY THE LEGAL STANDARD THAT YOU WANTED, THAT THE PLAINTIFFS
HAD TO COME IN AND SHOW, BY A PREPONDERANCE, THAT THEY HAD A CLASS-WIDE WAY TO MEASURE DAMAGES IN THIS CASE. – I DON’T THINK
THAT’S RIGHT, JUSTICE KAGAN. I THINK WE CAN HAVE
A HEALTHY DEBATE ABOUT WHETHER THE DISTRICT COURT DID WHAT YOU JUST
FINISHED SAYING. I THINK THERE CAN BE NO DEBATE THAT THE COURT OF
APPEALS DID SO BECAUSE, REPEATEDLY,
THROUGHOUT ITS OPINION, SAID THAT THE QUESTIONS
AS TO THE ADEQUACY OF WHETHER THEY HAD COMPLIED WITH THE HYDROGEN PEROXIDE
STANDARD WAS A MERITS QUESTION THAT WAS FOR LATER ADJUDICATION
IN THIS CASE. – WELL, HERE’S
WHAT THE DISTRICT COURT SAID. “THE EXPERTS’ OPINIONS
RAISE SUBSTANTIAL ISSUES “OF FACT AND CREDIBILITY THAT WE ARE REQUIRED TO RESOLVE
TO DECIDE THE PENDING MOTION.” THAT IS THE MOTION
FOR CLASS CERTIFICATION. “HAVING RIGOROUSLY ANALYZED
THE EXPERTS’ REPORTS, “WE CONCLUDE THAT THE CLASS
HAS MET ITS BURDEN “TO DEMONSTRATE THAT THE ELEMENT
OF ANTITRUST IMPACT “IS CAPABLE OF PROOF AT TRIAL “THROUGH EVIDENCE
THAT IS COMMON TO THE CLASS “AND THAT THERE IS A COMMON
METHODOLOGY AVAILABLE TO MEASURE AND QUANTIFY DAMAGES
ON A CLASS-WIDE BASIS.” SO THAT SEEMS TO ME EXACTLY WHAT
YOU SAY THEY SHOULD HAVE DONE. NOW, YOU DISAGREE WITH
THEIR ULTIMATE DETERMINATION, BUT NOT WITH THE STATEMENT
OF THE LAW. – OUR FINAL SET
OF DECISIONS FOLLOWS CLOSELY ON OUR DISCUSSION
OF THE FEDERAL COURTS. THESE FIVE CASES
ALL INVOLVED CLASS ACTION SUITS: WHEN THEY ARE ALLOWED;
WHO GETS TO DECIDE; AND WHAT NEEDS TO BE PROVED. IN THE FIRST OF THESE CASES,
“COMCAST V. BEHREND,” COMCAST SUBSCRIBERS
SUED THE COMPANY, ALLEGING ANTI-TRUST VIOLATIONS
THAT COST SUBSCRIBERS MORE MONEY. THE PLAINTIFFS ARGUED FOUR
ANTI-TRUST THEORIES. THE DISTRICT COURT REJECTED
THREE OF THEM BUT ONE SURVIVED. SO, SUZANNA,
HOW DID THE SUBSCRIBERS FARE IN DISTRICT COURT
AFTER THAT? – WELL, LET’S START
WITH A FEW BASICS. IN ORDER TO QUALIFY
FOR CLASS CERTIFICATION UNDER RULE 23(b)(3), THE PLAINTIFFS HAVE TO SHOW
THAT COMMON QUESTIONS PREDOMINATE
OVER INDIVIDUAL QUESTIONS, AND THAT INCLUDES
THE CALCULATION OF DAMAGES. SO WHAT THE PLAINTIFFS
IN THIS CASE DID IS THAT– IN ORDER TO SHOW
THAT THE DAMAGES COULD BE CALCULATED
ON A CLASS-WIDE BASIS, THEY GOT A STATISTICAL EXPERT
WHO CAME UP WITH A MODEL THAT CALCULATED HOW MUCH
HIGHER THE CABLE PRICES WERE AS A RESULT OF THE ALLEGED
ANTI-COMPETITIVE BEHAVIOR. – AND DID THAT GET
THEM CLASS CERTIFICATION? – IT DID. AND THE DISTRICT COURT AND THE COURT OF APPEALS
AFFIRMED THAT DECISION. BUT THE PROBLEM
WAS THAT EVEN THE EXPERT WHO DEVELOPED THE MODEL, IT COULDN’T DISTINGUISH
BETWEEN ANY HIGHER PRICES THAT WERE CAUSED
BY THE SURVIVING VIABLE CLAIM OF ANTICOMPETITIVE BEHAVIOR, COULDN’T DISTINGUISH
THOSE HIGHER PRICES FROM HIGHER PRICES
THAT WERE CAUSED BY THE CLAIMS OF ANTICOMPETITIVE BEHAVIOR
THAT WERE REJECTED. AND THAT WAS THE ISSUE THAT
THE SUPREME COURT FOCUSED ON. WHAT THE MAJORITY SAID WAS
THAT THEY AGREED WITH COMCAST THAT THE CLASS
HAD BEEN IMPROPERLY CERTIFIED BECAUSE THE MODEL DIDN’T
ACTUALLY SHOW THAT THE DAMAGES COULD BE CALCULATED
ON A CLASS-WIDE BASIS. – THIS WAS A 5-4 DECISION. THE DISSENT WANTED TO EMPHASIZE
THAT THE MAJORITY WAS NOT BREAKING
NEW LEGAL GROUND. IT SAID THE MAJORITY HERE IS
NOT SAYING THAT ALL CALCULATION OF DAMAGES REQUIRES
AN INDIVIDUALIZED DETERMINATION. THE DISSENT SAID THE MAJORITY JUST HELD IN THIS CASE,
THE CALCULATION OF DAMAGES REQUIRED
AN INDIVIDUALIZED DETERMINATION. WHAT THE DISSENT REALLY WANTED
TO EMPHASIZE IS THAT CLASS ACTIONS FOR DAMAGES, THE SORT
OF RUN-OF-THE-MILL CLASS ACTION, CAN STILL GO FORWARD. – THANK YOU. INDIVIDUAL COSTS
RATHER THAN INDIVIDUAL DAMAGES WERE AT THE CENTER
OF OUR NEXT CASE, “AMERICAN EXPRESS COMPANY V. ITALIAN COLORS RESTAURANT,
ET AL.” AMERICAN EXPRESS HAD A CONTRACT
WITH A NUMBER OF BUSINESSES, LIKE ITALIAN COLORS RESTAURANT, THAT REQUIRED THAT ALL DISPUTES
BETWEEN THE PARTIES TO BE SETTLED BY ARBITRATION AND SPECIFICALLY PROVIDED
THAT THERE WOULD BE “NO RIGHT “OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED
ON A CLASS ACTION BASIS.” ITALIAN COLORS
AND SOME OTHER MERCHANTS SUED AMERICAN EXPRESS
FOR ANTI-TRUST VIOLATIONS, CLAIMING THAT THEY FORCE
MERCHANTS TO PAY FEES THAT WERE 30% HIGHER
THAN OTHER CREDIT CARDS. THEY SOUGHT TREBLE DAMAGES
FOR THE CLASS. ERWIN, HOW DID THEY DEAL
WITH THE TERMS OF THIS CONTRACT THAT THEY SIGNED? – AMERICAN EXPRESS WANTED TO
INVOKE THE ARBITRATION CLAUSE, AND THAT WOULD PRECLUDE
CLASS-WIDE ARBITRATION. BUT ITALIAN COLORS RESTAURANT SAID THAT REALISTICALLY,
NO ANTITRUST CLAIM COULD BE BROUGHT
AGAINST AMERICAN EXPRESS, EXCEPT ON A CLASS-WIDE BASIS. ITALIAN COLORS SAID IT COST
HUNDREDS OF THOUSANDS, IF NOT MILLIONS, OF DOLLARS TO SUCCESSFULLY
BRING AN ANTITRUST CLAIM. ON THE OTHER HAND,
THE MAXIMUM RECOVERY FOR AN ANTITRUST CLAIM
WAS $39,000. SO IT ASKED THE FEDERAL COURT TO NOT ENFORCE THAT PROVISION
OF THE AGREEMENT THAT WOULD HAVE REQUIRED
INDIVIDUALIZED ARBITRATION. – AND WHAT DID THE COURT HOLD? – THE SUPREME COURT RULED IN
FAVOR OF AMERICAN EXPRESS. IT WAS A 5-4 DECISION
WITH JUSTICE SCALIA WRITING FOR THE MAJORITY. JUSTICE SCALIA EMPHASIZED
THAT THE FEDERAL ARBITRATION ACT REQUIRES THAT THERE BE
ENFORCEMENT OF ARBITRATION CLAUSES
FOR CONTRACTS OF INTERSTATE COMMERCE. THE FACT THAT THE SUIT MIGHT
HAVE OTHERWISE MOVED FORWARD WAS NOT A SUFFICIENT BASIS FOR NOT ENFORCING THAT CLAUSE
IN THE AGREEMENT. – THE MAJORITY, THEY DID CONCEDE
THAT THERE’S AN EXCEPTION TO THE FAA THAT ALLOWS COURTS TO INVALIDATE
AN ARBITRATION AGREEMENT– IF THE AGREEMENT WOULD PREVENT VINDICATION
OF A FEDERAL STATUTORY RIGHT. BUT THEN THEY DEFINED PREVENTING
VINDICATION QUITE NARROWLY AS MEANING THAT IT IS LIMITED
TO PURSUIT OF A RIGHT, THAT THE EXCEPTION DOESN’T APPLY
IF IT’S MERELY TOO EXPENSIVE TO WIN THE CASE. – I THINK JUSTICE SOTOMAYOR
RECUSED HERSELF FROM THIS. BUT JUSTICE KAGAN
WROTE A DISSENT, WHICH WAS JOINED
BY JUSTICES GINSBURG AND BREYER. SHE SAID THAT THIS WAS A CASE
WHERE A LARGE COMPANY USED ITS ECONOMIC POWER
TO VIOLATE THE ANTITRUST LAWS AND EFFECTIVELY TO INSULATE
ITSELF FROM BEING SUED. AND SHE SAID,
THAT’S EXACTLY THE SITUATION WHERE THE EFFECTIVE VINDICATION
EXCEPTION OUGHT TO APPLY. – SO, ERWIN, WHAT’S THE EFFECT
OF THIS DECISION? – I THINK THIS DECISION HAS TO BE UNDERSTOOD
WITH ONE FROM TWO YEARS AGO, IN “AT&T MOBILITY
V. CONCEPCION.” THAT INVOLVED AN ARBITRATION
CLAUSE AND A CONSUMER CONTRACT. THE CALIFORNIA SUPREME COURT
HAD SAID ARBITRATION CLAUSES AND ROUTINE CONSUMER CONTRACTS ARE NOT ENFORCEABLE BECAUSE
THEY’RE CONTRACTS OF ADHESION. THE SUPREME COURT RULED 5-4 THAT SUCH ARBITRATION CLAUSES
ARE TO BE GIVEN EFFECT. SO IF YOU PUT THESE TWO
DECISIONS TOGETHER, YOU SEE THAT THE MAJORITY
OF THE SUPREME COURT WANTED VERY MUCH
TO ENFORCE ARBITRATION CLAUSES, INCLUDING WHEN THEY PRECLUDE
CLASS-ACTION RELIEF, INCLUDING IF IT MEANS THAT NO SUIT WILL OTHERWISE
BE ABLE TO GO FORWARD. – I AGREE. I AGREE. I THINK THIS DECISION , IF YOU PUT IT TOGETHER
WITH THE “AT&T” DECISION AND ANOTHER DECISION
FROM A COUPLE YEARS AGO CALLED “STOLT-NIELSEN,” I THINK THAT JUST MEANS
THAT CLASS-WIDE ARBITRATION IS HEADED FOR EXTINCTION BECAUSE ALL OF THESE CONSUMER
CONTRACTS NOW HAVE NOT ONLY ARBITRATION CLAUSES BUT CLAUSES THAT
PROHIBIT CLASS-WIDE ARBITRATION. AND I JUST CAN’T SEE
THE SUPREME COURT HOLDING ANY OF THEM
INVALID IN THE NEAR FUTURE. – THE “STOLT-NIELSEN” DECISION
THAT WE WERE JUST TALKING ABOUT HELD THAT CLASS-WIDE ARBITRATION COULD NOT BE IMPOSED
ON THE PARTIES WITHOUT THEIR CONSENT. IN OUR NEXT DECISION, “OXFORD HEALTH PLANS V. SUTTER,” THE COURT PROVED ITS CONSISTENCY EVEN WHEN IT MIGHT DISAGREE
WITH THE ARBITER’S DECISION. SUZANNA, WHAT WERE THE FACTS
THERE? – WELL, IN THIS CASE,
THERE WASN’T A WAIVER OF CLASS-WIDE ARBITRATION. IN FACT, THE ARBITRATION
AGREEMENT BETWEEN THE PARTIES DIDN’T SPECIFY AT ALL
WHETHER CLASS-WIDE ARBITRATION WOULD BE ALLOWED. AND SO THE PARTIES
AGREED TO SUBMIT THAT QUESTION OF WHETHER CLASS-WIDE
ARBITRATION WOULD BE ALLOWED TO THE ARBITRATOR. AND THE ARBITRATOR FOUND
THAT THE AGREEMENT DID ALLOW FOR CLASS-WIDE ARBITRATION. OXFORD HEALTH ASKED THE ARBITRATOR
TO RECONSIDER HIS DECISION AFTER “STOLT-NIELSEN.” AND THE ARBITRATOR RECONFIRMED
AND SAID THAT THE PARTIES HAD UNAMBIGUOUSLY
“EVINCED AN INTENTION TO ALLOW CLASS ARBITRATION.” – AND THE COURT CAME DOWN
ON THE SIDE OF ALLOWING CLASS ARBITRATION IN THAT CASE. – THEY DID. JUSTICE KAGAN, WHO HAD DISSENTED
IN THE “AMERICAN EXPRESS” CASE, WROTE THE DECISION
FOR A UNANIMOUS COURT. BASICALLY, THE JUSTICES
HELD THAT THE FAA– ALLOWS FOR VERY LIMITED
JUDICIAL REVIEW OF AN ARBITRATOR’S DECISION. A COURT CAN’T VOID
AN ARBITRATOR’S DECISION UNLESS IT’S BEYOND THE SCOPE
OF HIS AUTHORITY. AND IN THIS CASE, MAKING THE DECISION ABOUT WHETHER CLASS-WIDE
ARBITRATION WAS AVAILABLE WAS WITHIN HIS AUTHORITY. – STILL, SUZANNA, IN MANY WAYS, THIS IS STILL A VERY NARROW
DECISION. IF YOU LOOK AT FOOTNOTE 2 AND
THEN YOU LOOK AT THE CONCURRENCE BY JUSTICE ALITO
AND JUSTICE THOMAS, YOU KNOW, THEY SAY THEY
REACHED THIS DECISION BECAUSE BOTH PARTIES DID AGREE TO SUBMIT THE QUESTION
TO THE ARBITRATOR. – YEAH, THAT’S RIGHT.
I THINK IF THE PARTIES HADN’T, THEN YOU WOULD HAVE
HAD A DIFFERENT QUESTION, AN OPEN QUESTION. IT’S STILL AN OPEN QUESTION OF WHETHER THE AVAILABILITY
OF CLASS-WIDE ARBITRATION IS WHAT’S CALLED A “TECHNICAL
QUESTION OF ARBITRABILITY.” THAT IS A QUESTION THAT HAS
TO BE DECIDED BY A COURT RATHER THAN BY AN ARBITRATOR. I THINK THIS QUESTION
WILL COME BEFORE THE COURT. AND THEY’RE VERY LIKELY
TO HOLD THAT QUESTIONS ABOUT WHETHER CLASS-WIDE
ARBITRATION IS AVAILABLE ARE QUESTIONS FOR A COURT, NOT FOR THE ARBITRATOR. – GOOD. THANK YOU. NOW WE TURN TO A SPECIFIC KIND
OF CLASS ACTION CASE. THAT IS A PRIVATE SECURITIES
FRAUD ACTION UNDER SECTION 10B OF THE SECURITIES
AND EXCHANGE ACT OF 1934. THE NAME OF THE CASE IS “AMGEN
V. CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS.” NOW, THE CONNECTICUT FUND
CLAIMED THAT AMGEN MADE MISREPRESENTATIONS
ABOUT SOME OF ITS PRODUCTS AND THAT WHEN THESE FALSEHOODS
WERE EXPOSED, AMGEN’S STOCK PRICE
FELL, LOSING MONEY FOR THE INVESTORS WHO RELIED
ON THOSE MISREPRESENTATIONS. NOW, TO RECOVER DAMAGES
IN A PRIVATE SECURITIES FRAUD ACTION UNDER 10B, A PLAINTIFF HAS TO PROVE,
AMONG OTHER THINGS, THAT THE INVESTOR RELIED ON
A MATERIAL MISREPRESENTATION OR OMISSION BY THE DEFENDANT
IN MAKING THE INVESTMENT THAT LOST MONEY. BUT BECAUSE DIRECT RELIANCE
OF EVERY INVESTOR WOULD BE ALMOST IMPOSSIBLE, THE COURT HAD IN THE PAST ADOPTED WHAT IT CALLED
A “FRAUD ON THE MARKET” THEORY. THIS THEORY
INVOKES A REBUTTABLE PRESUMPTION THAT INVESTORS RELIED
ON PUBLIC MISREPRESENTATIONS ABOUT SECURITIES THAT WERE
TRADED IN AN EFFICIENT MARKET. THIS PERMITS RELIANCE TO BE
PROVED ON A CLASS-WIDE BASIS AND MAKES
POSSIBLE CERTIFICATIONS OF SECURITIES FRAUD CLASS
ACTIONS. NOW, THE QUESTION
BEFORE THE COURT IN AMGEN WAS WHETHER CONNECTICUT
HAD TO SHOW THE MATERIALITY OF THE ALLEGED MISSTATEMENTS IN ORDER TO GET
CLASS-WIDE CERTIFICATION. ERWIN? – THE SUPREME COURT
SAID THAT MATERIALITY DOES NOT HAVE TO BE PROVEN AT
THE CLASS CERTIFICATION STAGE OF SUCH LITIGATION. THE COURT SAID IT’S SUFFICIENT
TO PLEAD MATERIALITY. THE COURT SAID UNDER RULE 23, THE CRUCIAL INQUIRY ALWAYS
IS WHETHER COMMON ISSUES OF LAW, IN FACT, PREDOMINATE. THE COURT SAID MATERIALITY
IS LIKELY THE SAME FOR THE ENTIRE CLASS. AND EVEN IF THERE’S NOT
MATERIALITY, THAT DOESN’T REQUIRE
INDIVIDUALIZED DETERMINATIONS. – SO THE QUESTION ISN’T WHETHER
MATERIALITY IS IMPORTANT, IT’S THE QUESTION
OF AT WHAT STAGE DOES IT BECOME IMPORTANT. – THAT’S RIGHT.
THIS CASE HOLDS THAT MATERIALITY IS IMPORTANT
FOR THE MERITS, OF COURSE, BUT THAT IT’S NOT IMPORTANT
AT THE CERTIFICATION STAGE. AND HERE’S WHY. IF THE STATEMENTS THAT THE PLAINTIFFS
RELIED ON WERE MATERIAL, THEN THE PLAINTIFFS
HAVE A POSSIBILITY OF WINNING. IF THEY WEREN’T MATERIAL,
THEN THE PLAINTIFFS CAN’T WIN. BUT THAT’S A QUESTION
OVER THE MERITS, NOT OF CERTIFICATION. – I THINK
THAT’S ABSOLUTELY RIGHT. AND THE COURT WAS ALSO CONCERNED
THAT COMING OUT THE OTHER WAY WOULD REQUIRE A TRIAL
ON MATERIALITY AT THE CERTIFICATION STAGE
IN ALL OF THESE CASES. WHAT THEY SIMPLY SAID WAS
AMGEN DIDN’T NEED TO BE ABLE TO PRESENT EVIDENCE AGAINST MATERIALITY
AT THIS STAGE OF THE LITIGATION. – OK, FINALLY WE’RE GOING
TO LOOK AT “STANDARD FIRE INSURANCE COMPANY V. KNOWLES.” THIS WAS ANOTHER UNANIMOUS
DECISION. THIS ONE WAS PRETTY NARROW,
WASN’T IT, SUZANNA? – NARROW, BUT I THINK IMPORTANT. THE CLASS ACTION FAIRNESS ACT,
CAFA, GIVES FEDERAL COURTS ORIGINAL
JURISDICTION OVER CLASS ACTIONS IF, AMONG OTHER THINGS, THE TOTAL AMOUNT IN CONTROVERSY
IS MORE THAN $5 MILLION. AND NORMALLY YOU WOULD ADD UP THE CLAIMS
OF THE INDIVIDUAL CLASS MEMBERS TO DETERMINE
WHETHER IT REACHED $5 MILLION. SO, IN THIS CASE, GREG KNOWLES FILED A CLASS
ACTION IN ARKANSAS STATE COURT AGAINST THE STANDARD FIRE
INSURANCE COMPANY. AND TO TRY TO KEEP IT
OUT OF FEDERAL COURT, EVEN THOUGH THE CLASS WAS GOING TO CONSIST OF HUNDREDS AND
MAYBE EVEN THOUSANDS OF MEMBERS, THE COMPLAINT SAID THAT KNOWLES
WOULD NOT AT ANY TIME SEEK DAMAGES
FOR THE CLASS AS A WHOLE THAT EXCEEDED $5 MILLION. – AND DID HE STAY OUT
OF FEDERAL COURT IF HE DID THAT? – NO, IT DIDN’T WORK. THE SUPREME COURT
FOUND UNANIMOUSLY THAT THIS KIND OF A STIPULATION IN A COMPLAINT
AT THE CERTIFICATION STAGE CAN’T BIND THE CLASS MEMBERS, AND SO THAT THE COURT WOULD HAVE TO DETERMINE
BY THE NORMAL METHODS WHETHER THE AMOUNT MET
THE MINIMUM CONTROVERSY AMOUNT. – GREAT. NOW LET’S TURN
TO SOME QUESTIONS, BETH, FROM OUR VIEWERS. – OK. WE HAVE A QUESTION, THIS TIME ABOUT ONE
OF GINSBURG’S DISSENTS. AND I’LL READ IT TO YOU. “WHAT DO WE MAKE
OF THE MAJORITY’S LACK “OF ENGAGEMENT
WITH GINSBURG’S FORCEFUL DISSENT “THAT CONCLUDES, ‘IT
REMAINS THE BLACK LETTER RULE “‘THAT A CLASS…
MAY OBTAIN CERTIFICATION “UNDER RULE 23(b)(3) “‘WHEN LIABILITY QUESTIONS
COMMON TO THE CLASS “PREDOMINATE OVER DAMAGES
QUESTIONS UNIQUE TO…’ “OTHER CLASS MEMBERS AND
SUGGESTS THAT THE COURT’S RULING IS GOOD FOR THIS DAY
AND CASE ONLY?” IS THERE ROOM
IN THE MAJORITY OPINION FOR THE DISSENT’S POSITION? – I THINK THAT THERE IS
BECAUSE THE COURT– SAID THAT THE COMMON QUESTIONS DIDN’T PREDOMINATE
IN THIS PARTICULAR CASE. THE COURT AT LEAST SAID
IT WASN’T CHANGING THE STANDARD FOR WHAT IT MEANS FOR
COMMON QUESTIONS TO PREDOMINATE. AND I THINK SO IN THAT SENSE
PERHAPS THE MAJORITY IN THE DISSENT WERE TALKING
AT CROSS-PURPOSES A LITTLE BIT. I DON’T THINK
THIS IS A BIG CHANGE IN THE LAW. I THINK THIS WAS AN APPLICATION
OF PRETTY MUCH ESTABLISHED LAW TO AN UNUSUAL FACTUAL SITUATION,
SHALL WE SAY. – OK. ANYONE ELSE? OK. THAT’S ALL THE TIME
WE HAVE FOR QUESTIONS NOW. JIM? – WELL,
THAT’S IT FOR THIS PANEL. OUR FACULTY WILL RESPOND
BY EMAIL TO ANY QUESTIONS WE COULDN’T GET
TO DURING THE PROGRAM. I’D LIKE TO THANK THIS PANEL
FOR A LIVELY DISCUSSION. AND NOW HERE’S JOHN COOKE
WITH SOME FINAL WORDS. – THAT’S OUR PROGRAM
FOR THIS YEAR. WE HOPE YOU FOUND
IT USEFUL AND INTERESTING. THERE IS A LINK TO AN ONLINE
SURVEY WITH THE OUTLINE AND WRITTEN
AND MATERIAL MATERIALS THAT WE HOPE YOU WILL TAKE JUST
A FEW MINUTES NOW TO FILL OUT. IT’S THE ONLY WAY FOR US TO KNOW WHAT YOU LIKED
ABOUT THE PROGRAM, WHAT YOU DIDN’T LIKE, AND WHAT YOU WOULD LIKE TO SEE
US DO DIFFERENTLY IN THE FUTURE. I WANT TO THANK OUR FACULTY
FOR THEIR THOUGHTFUL DISCUSSION AND YOU FOR WATCHING
AND TAKING PART IN IT. I’M JOHN COOKE. GOOD-BYE.

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