Justice Watch

The State of the Union

2012-01-26T16:55:00.000-05:00

With America's judicial vacancy crisis growing worse by the day, President Obama highlighted the sorry state of the confirmation process during his State of the Union address.

Now you can join him in calling on the Senate to relieve the pressure on our courts caused by ballooning caseloads and judicial emergencies.

Tell your senators that delays are unacceptable. Ask them to vote on pending nominees without delay, without obstruction, and without partisan games.

Supreme Court Extends 4th Amendment Protections in GPS Monitoring Case

2012-01-25T16:05:00.002-05:00

On Monday, the Supreme Court delivered a limited victory (.pdf download) for privacy rights in United States v. Jones, holding that the police performed an unconstitutional search in this case. Although the majority opinion and two concurrences relied on different legal analyses, the decision signals the Court’s concern about the implications of new technologies for the Fourth Amendment’s protection of individual privacy.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones's vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones's car while it was located in Maryland and tracked Mr. Jones's car for a month. The device recorded Jones's vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a “search” under the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use the device to monitor that car remotely. The majority revived a property-based approach to the Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but left untouched the current “reasonable expectation of privacy” approach where no physical trespass is at issue.

Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment. However, Justice Alito would not have held that the installation of the GPS device was a search. Instead, he expressed his view that it was the long-term monitoring with the device that violated a reasonable expectation of privacy. He also criticized the majority for what he described as reliance on “18th Century tort law.” According to the concurrence, the majority’s property-based approach might not protect privacy as much as is required, particularly with the continuing advance of technology.

Justice Sotomayor, who joined the majority, also wrote a concurring opinion. In it, she signaled her openness to a potentially significant expansion of privacy rights. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

In sum, the majority’s holding in this case – and thus the law of the land – is that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates. Nevertheless, the three opinions written in this case make it clear that the justices are concerned with what new technology means for personal privacy rights, a concern that will likely be fleshed out further in cases to come.

President Obama's State of the Union Address Highlights the Sorry State of the Judicial Nominations Process

2012-01-24T22:07:00.000-05:00

PRESS RELEASE

Washington, D.C., January 24, 2012—Alliance for Justice President Nan Aron issued the following statement about President Barack Obama’s call for action on judicial nominations during the State of the Union address:

With the nation’s federal courts in crisis, and with one in nine judgeships vacant, we applaud President Obama for using tonight’s State of the Union address to highlight the need for urgent Senate action on his judicial nominations. Relentless, unprecedented obstruction by Republicans threatens to create the almost unimaginable possibility that by the end of the President’s first term the overburdened federal courts may have more vacancies than when his presidency began. We believe the place for the Senate to start is with immediate votes for the 18 nominees currently awaiting final action, but then to work with the President to restore the federal court system to full strength by the end of this year. We urge the Senate to heed the President’s call for immediate action so that the state of the union can once again be characterized by an effective and fully staffed system of justice for all Americans.

Corporate Court Rules for Industry in Slaughterhouse Case

2012-01-24T17:05:00.000-05:00

Yesterday, the Supreme Court handed down its decision (.pdf download) in National Meat Association v. Harris, holding that a California state law requiring the humane handling of sick or disabled animals destined for slaughter was preempted by the federal law governing slaughterhouses.

In January 2008, the Humane Society released undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been part of the largest beef product recall in United States history.

The California State Legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized. The National Meat Association sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”).

The FMIA was first enacted in 1906, in the wake of Upton Sinclair’s exposé of the meat industry, The Jungle. FMIA is a comprehensive set of regulations governing the slaughtering process, designed to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. The Court of Appeals for the Ninth Circuit ruled for California, holding that the state law did not conflict with the FMIA’s regulation of slaughterhouse activities, because its effect was to exclude certain types of animals from the slaughtering process all together.

The Supreme Court, in a unanimous opinion written by Justice Kagan, reversed the Ninth Circuit, finding the state law to be expressly preempted by the FMIA. The Court held that “[t]he FMIA regulates slaughterhouses’ handling and treatment of nonambulatory pigs from the moment of their delivery through the end of the meat production process,” and California’s law “endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements.” Accordingly, the Court struck down the state law as preempted, thus undermining California’s efforts to ensure humane and safe handling of animals destined for slaughter.

As a result of the Court’s decision, it will be easier for potentially contaminated meat to get into California grocery stores, and more difficult for all states to protect the public health through the regulation of the food supply.

Senate Confirms Gerrard to the District of Nebraska

2012-01-24T08:44:00.007-05:00

The Senate last night confirmed Judge John Gerrard to be a United States District Court judge for the District of Nebraska. Judge Gerrard was confirmed by a bipartisan vote of 74-16. The Senate’s action leaves 18 other judicial nominees waiting on the floor for their confirmation votes, 17 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

Citizens United, Two Years Later

2012-01-24T08:03:00.000-05:00

Two years ago Saturday, the Supreme Court issued what may be its most pro-corporate decision yet, in the now-infamous case of Citizens United v. FEC (.pdf download). The case has become emblematic of the Corporate Court.

There is no doubt that Citizens United is an important decision because of its effects on our electoral process. But it is also important because the decision is yet another brick in the wall of privilege that the Supreme Court has been building for the largest corporations. In the last year alone, the Supreme Court has:

made it easier for corporations to escape liability in employment discrimination class action suits (Wal-Mart v. Dukes);
made it more difficult for consumers who were ripped off to band together by forcing them into individual arbitration (AT&T v. Concepcion (.pdf download));
made it more difficult for citizens hurt by global warming to sue to stop big polluters (American Electric Power Company v. Connecticut); and
made it easier for pharmaceutical companies to get doctors’ prescription data for marketing purposes (Sorrell v. IMS Health).

Under Chief Justice John Roberts, this Supreme Court has expanded corporate power in decision after decision.

Fortunately, many are fighting back. Last week, on the two-year anniversary of the decision a group of citizens gathered on the steps of the Supreme Court to protest the decision and corporate influence in the courts. The protest was part of a nationwide series of “Occupy the Courts” demonstrations.

Click here to learn more about the Corporate Court.

The Court Chips Away at the Voting Rights Act

2012-01-23T13:43:00.001-05:00

Guest post by Professor Bertrall Ross

The headline from the Texas redistricting cases is that the Texas Republican Party won. But the true victors from the Supreme Court ruling in the consolidated cases are the jurisdictions covered under Section 5 of the Voting Rights Act – the jurisdictions required to obtain approval for districting changes.

The unanimous holding that the federal court in San Antonio had not given enough deference to the state legislative districting determinations was rather unremarkable and mostly expected. The federal court had essentially constructed a new districting arrangement out of whole cloth based on considerations that the legislature is ordinarily deemed best suited to make. It is also rather unremarkable that the Court imported a preliminary injunction standard that requires federal courts to consider the likelihood of success on the merits prior to making districting changes in response to alleged violations of Section 2 of the Voting Rights Act and the Constitution. As with any attempt to enjoin preliminarily a government act, the burden should be on the parties to show that they will likely succeed on the claim before the court stops the government from acting. Ultimately, on this matter, the victory of the Texas GOP may be rendered incomplete, as the San Antonio court will probably impose an interim plan that is less favorable to the Republican Party than the state’s plan would be, since the court has indicated that the latter likely contains violations of both Section 2 and the Constitution.

What is remarkable about the consolidated cases is how the Supreme Court continues to transform, without invalidating, the Section 5 preclearance mechanism into one that is decreasingly burdensome on the states at the expense of minority voters. The Court starts its discussion of the Section 5 issue presented in the cases by restating the long-standing rule that this provision prevents implementation of a state plan that has not been approved by the United States Attorney General or the District Court for the District of Columbia. Ordinarily, a situation such as that presented by Texas is an open and shut case under Section 5. Neither the Attorney General nor the District Court for the District of Columbia have approved the change to the electoral law, therefore the electoral law cannot be changed and the prior law must be kept in place for the upcoming election. However, the Court acknowledged that redistricting changes present a unique problem. Since the establishment of the one-person, one-vote requirement, states and local jurisdictions are constitutionally mandated to make changes to districting arrangements after every census to ensure equal population districts. The usual option of no change to the electoral law is therefore no longer available. Some districting plan has to be put in place before the first election after every census.

For districting arrangements such as those in Texas, which have not yet been pre-cleared in the face of an impending election, the Court had essentially two options. First, it could have allowed the un-precleared state plans to be adopted for this election cycle. This approach would have severely undermined the pre-clearance mechanism, as covered states would be incentivized to engage in delay tactics when seeking pre-clearance, in hopes that a plan presumably harmful to minority voters be used during the first post-census elections. The Court fortunately did not go this route.

However, the Court had only one other option available to it under Section 5, an option only slightly more appealing from the perspective of minority voters. Since only the District Court for the District of Columbia can adjudicate Section 5 preclearance questions under the Voting Rights Act, the Court instructed lower federal courts responsible for drawing up alternative plans to not “prejudge the merits of preclearance.” Instead, they must accept the policy judgments reflected in the state plan unless particular aspects “stand a reasonable probability of failing to gain Section 5 preclearance.” It is not exactly clear what a standard of “reasonable probability” means. Depending on the court, the standard may result in a great deal of deference given to the state plan or very little to no deference at all.

But irrespective of how lower courts interpret the standard, the requirement that any new districting plan must be precleared before being employed has been loosened. And ever so slightly, the incentives for covered jurisdictions to take the slowest route toward preclearance has increased based on the possibility, and in some cases the strong possibility, that an un-precleared plan could be employed in at least one election. One election may not seem like such a big deal, but when one considers that the terms in the Texas state legislature can run up to four years in the election after the decennial reapportionment, the stakes grow. The burden of delay when covered jurisdictions seek pre-clearance is now firmly on minority voters, as they face the possibility of having to endure an election under a plan that makes them worse off than they were under the prior plan. The Texas redistricting decision therefore represents a subtle yet important win for the covered jurisdictions and a loss for minority voters.

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Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

Supreme Court Sides with Texas in Redistricting Dispute

2012-01-23T11:19:00.003-05:00

Last week, the Supreme Court issued a unanimous unsigned opinion (.pdf download) in the cases consolidated as Perry v. Perez, rejecting the interim electoral maps drawn by a three-judge district court panel in San Antonio for failing to defer adequately to the legislature’s choices. The decision is seen as a win for the Texas GOP.

2010 Census data revealed that a population explosion and demographic change in Texas had left the state’s electoral maps in violation of the Constitution’s one-person, one-vote mandate and in need of being redrawn. Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. Accordingly, Texas submitted its redrawn maps to a three-judge district court panel in DC, which has not yet ruled on preclearance.

Advocates suggest that the Republican-dominated Texas legislature redrew the maps in a way that dilutes African-American and Latino voting strength. Thus, voters and advocacy groups filed suit in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. In view of the impending election season, the San Antonio court drew interim maps to be used until the preclearance issue could be resolved. Texas appealed to the Supreme Court, arguing that the district court had erred in drawing new maps and that the legislatively-drawn maps should be used as interim maps instead.

In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election.

However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.” It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Shortly after issuing its decision in this case, the Supreme Court issued a short order (.pdf download) staying the order of a three-judge district court panel in West Virginia pending appeal. The Charleston court had held that “zero variance” in population is required to satisfy the one-person, one-vote constitutional mandate. As a result of the Supreme Court’s stay, West Virginia can proceed with its elections using a legislatively-drawn map.

Wal-Mart Plaintiffs Continue Their Fight in Texas

2012-01-20T17:11:00.000-05:00

Representing a class of 50,000 current and former female employees of Wal-Mart and Sam’s Club stores in Texas, plaintiffs have filed an amended complaint (.pdf download) in district court in the Northern District of Texas. The complaint alleges that Wal-Mart engages in widespread gender discrimination against its female employees throughout Texas in its pay and promotion policies and practices.

This is the second regional lawsuit that plaintiffs have filed against Wal-Mart, following the June 2011 decision in which the Supreme Court reversed a lower court’s certification of a class of 1.5 million current and former female Wal-Mart employees nationwide. In that 5-4 decision, Wal-Mart v. Dukes, the Supreme Court issued new guidelines for class actions and Title VII Civil Rights Act employment discrimination cases, and held that the Wal-Mart plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

According to the plaintiffs’ attorneys, “Evidence in the case shows that women who hold salaried and hourly positions in the Texas stores have been paid less than men in comparable positions, although on average the women have more seniority and higher performance ratings than men.” They note in addition that “[w]omen in Wal-Mart’s Texas stores also had a much lower chance of being promoted than men, and those who did get promoted waited significantly longer for job promotions.”

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and promotion.

Senate Returns Next Week - Nominees on the Agenda

2012-01-20T17:02:00.000-05:00

When the Senate returns from its recess next week, the Judiciary Committee will hold an Executive Business Meeting and a Nominations Hearing.

On Thursday morning, the committee will hold an Executive Business Meeting at which Republicans will most likely delay a vote on Paul Watford, who has been nominated to fill a judicial emergency vacancy on the Ninth Circuit Court of Appeals.

On Thursday afternoon, the committee will hold hearing on the nominations of Andrew David Hurwitz, also nominated to fill a seat on the Ninth Circuit, and of four district court nominees: Kristine Gerhard Baker, nominated to the Eastern District of Arkansas; John Z. Lee and John J. Tharp, both nominated to the Northern District of Illinois; and George Levi Russell III, nominated to the District of Maryland.

The seats Hurwitz, Lee, Tharp, and Russell would be filling have all been deemed emergency vacancies by the Administrative Office of the U.S. Courts.

With 103 current and future vacancies on the federal bench, the Senate needs to act quickly confirm all 37 pending nominees.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

Supreme Court Rules for Consumer in Robocall Case

2012-01-19T09:06:00.000-05:00

The Supreme Court yesterday issued its decision in the case of Mims v. Arrow Financial Services, holding that state and federal courts have concurrent jurisdiction to hear civil suits brought by consumers who have fallen victim to illegal and harassing robocalls.

Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans. Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails. Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (“the Act”), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone. The district court dismissed the complaint and the Eleventh Circuit upheld (.pdf download) the dismissal, reasoning that Congress intended to limit jurisdiction over lawsuits under the Act to state courts.

The Supreme Court reversed this holding, allowing consumers to stand up for their rights under the Act in both state and federal court. The Court reasoned that the Act does not use the words “only” or “exclusively” in granting jurisdiction to state courts. Furthermore, the Court found that the Act created a federal right of action, and thus, federal courts retain concurrent jurisdiction over causes of action under the Act as an exercise of their general federal-question jurisdiction.

A brief (.pdf download) filed by the National Association of Consumer Advocates, an AFJ member organization, and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.” The organizations added that “this unfortunate state of affairs is the failure of the Act’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.”

By siding with Mims, the Supreme Court has provided consumers with the ability to hold companies accountable for unlawful telephone harassment in federal court, where they might receive greater relief than they would in the courts of states with weaker consumer protections.

A Decade of Guantanamo: Where Do We Stand Today?

2012-01-12T17:40:00.000-05:00

Ten years ago this week, the United States opened a detention facility at its naval base in Guantanamo Bay, Cuba.

Since that time, the name “Guantanamo” has come to be associated both in the United States and around the world with torture, lawlessness, indefinite detention, violations of civil rights, violations of international law, and abuse of power. The facility has been open for ten years now, but unfortunately, as Dahlia Lithwick noted this week in Slate, “It’s hard to say anything new about 10 full years of Guantanamo, beyond the fact that most of what we wrote two, four, and seven years ago still holds mostly true.”

As David Cole recognized in the New York Times:

'The existence of Guantanamo likely created more terrorists around the world than it ever detained.’ So said President Barack Obama in 2009, defending his promise to close the prison camp there. He is hardly the only one to hold the view that Guantánamo undermines our security and should be shuttered. Former President George W. Bush, former Secretary of Defense Robert Gates, former secretaries of state Colin Powell and Condoleezza Rice, and Senator John McCain, all agreed that the United States would be better off without Guantánamo. Few images do more to serve Al Qaeda’s interests.

There were hopes that the United States could remove this stain on its national character. Unfortunately, Congress has imposed restrictions on detainee transfers that have made it much more difficult to turn the page on this sad chapter in American history.

The United States was founded on a set of principles, and those principles are challenged every day by the continued operation of Guantanamo Bay and by everything Guantanamo Bay has come to represent. Serious accusations have been made that torture was commonplace at Guantanamo, and Alliance for Justice has long advocated for greater accountability for those who legitimized torture at such facilities. We have called on Attorney General Eric Holder to conduct a full investigation of those who authorized torture.

This facility has been allowed to remain open for an entire decade. It must not remain open any more.

Supreme Court Rules Unanimously In Offshore Workers’ Comp Case

2012-01-11T18:54:00.000-05:00

This morning the Supreme Court issued its decision in Pacific Operators Offshore, LLP v. Valladolid (.pdf download), affirming the Ninth Circuit’s holding that workers in the offshore extractive industry who are injured while working onshore may receive workers compensation under the Outer Continental Shelf Lands Act (OCSLA). In this unanimous opinion, written by Justice Thomas, the Court applied standard methods of statutory interpretation in a straightforward manner to resolve a split among the circuit courts in interpreting the OCSLA.

Juan Valladolid was killed when a forklift crushed him while he was working for Pacific Operations Offshore, an oil extraction company. Valladolid spent 98% of his working hours on an oil platform on the Outer Continental Shelf (OCS) three miles from the California coast but died while working onshore to clean up scrap metal taken from operations on the OCS. Valladolid’s widow, Luisa, argued that she was entitled to benefits under the Outer Continental Shelf Lands Act (the Act), which requires employers or their insurance providers to pay benefits to individuals or surviving relatives when employees suffer “any injury occurring as the result of operations conducted on the [OCS] for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources…of the [OCS].” An administrative law judge denied Luisa Valladolid’s claim for benefits because her husband’s death did not occur “on the subsoil and seabed of the [OCS], or the artificial islands and structures erected thereon.”

The Ninth Circuit Court of Appeals reversed this decision and held that the plain language of the Act shows that a death or injury does not have to occur on the OCS for an injured employee or surviving relative to receive benefits as long as there is “a substantial nexus between the injury and extractive operations on the shelf.” The Ninth Circuit’s test conflicted with those devised by two other circuits. The Third Circuit had adopted an expansive reading of the statute as covering all injuries that would not have occurred “but for” the operations on the OCS – including, for example, a worker “killed in a car accident on the way to the helicopter that was to fly him to the rig” that he worked on. The Fifth Circuit, on the other hand, had adopted a much narrower interpretation, holding that the statute covered only injuries actually suffered “on an OCS platform or the waters above the OCS.”

Surprisingly, given the Supreme Court’s penchant for reversing the Ninth Circuit’s decisions, the Court in this case affirmed the Ninth Circuit’s ruling and its “substantial nexus” test, through a common sense reading of the statute in question. As a result, workers in the offshore extractive industries who are injured or killed while working onshore may still receive benefits under the OCSLA if they can show a “substantial nexus” between their injury and operations on the Outer Continental Shelf.

Corporate Court Okays Religious School’s Discriminatory Firing of Teacher

2012-01-11T18:33:00.000-05:00

This morning the Supreme Court issued its decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC (.pdf download), holding that the First Amendment prohibits a “called” teacher who has been fired from a religious school from suing for employment discrimination.

Cheryl Perich was a teacher of primarily secular subject matter at Hosanna-Tabor Lutheran School. Perich became ill in July 2004 and took medical leave. When Perich recovered and adapted to her treatment, she told the school she wanted to return to teaching, but the school expressed concerns about her disability and asked her to resign. Perich told school officials she would file a disability discrimination suit if they could not come to an amicable solution. Soon thereafter, Perich was fired.

The EEOC filed charges against Hosanna-Tabor for illegally retaliating against Perich and firing her for discriminatory reasons. Hosanna-Tabor claimed that its actions were protected by the Establishment Clause and the Free Exercise Clause of the First Amendment. The school cited the “ministerial exception” to employment discrimination laws, which the lower courts of appeal have created and applied for some time, but which has never been acknowledged or approved by the Supreme Court. Under this exception, religious institutions are immune from discrimination suits if a fired employee had primarily religious duties.

Reversing the Sixth Circuit, the Supreme Court held today for the first time that there is a “ministerial exception” to federal employment discrimination laws, including Title VII and the ADA. The Court then proceeded to apply a totality of the circumstances test to conclude that Perich was a “minister” and that therefore the ministerial exception applies and her suit is barred. Focusing on Perich’s religious training, title, and the religious duties that she performed, the Court downplayed the fact that the vast majority of her duties were secular and that most of her religious duties were also performed by lay teachers.

By siding with Hosanna-Tabor, the Supreme Court has rendered religious schools immune from suit for discriminating or retaliating against employees for reasons unrelated to religious doctrine. This makes it difficult for teachers to speak out against misdeeds within religious schools and institutions for fear of retaliation, and allows religious institutions to discriminate with impunity.

Corporate Court Finds No Federal Remedy for Constitutional Violations by Private Prison Contractors

2012-01-10T16:35:00.000-05:00

The Supreme Court issued its decision today in Minneci v. Pollard (.pdf download), holding that employees of a private corporation operating a federal prison may not be held liable under federal law for committing constitutional violations. In so doing, the Court has left the 16% of the federal prison population that resides in privately-run facilities without a federal remedy when their jailers violate their constitutional rights.

Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.

Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.

In today’s decision, the Court reversed the Ninth Circuit’s holding that a Bivens action is available where the only alternative remedy is under state law. The Court followed its 2001 decision in Correctional Services Corp. v. Malesko, in which it held that the prisoner plaintiff could not state a Bivens claim against the private corporate entity running the federal prison in which he was incarcerated. In Malesko, the Court reasoned that a suit against a corporation would not deter individual misconduct, and that the plaintiff could sue under state tort law instead. Although in this case Pollard sued individual Wackenhut employees, the Court nonetheless concluded today that there is no reason to imply a Bivens remedy because, as in Malesko, Pollard can pursue his claims under state tort law.

However, as Justice Ginsburg points out in her lone dissent, Pollard would clearly have had a Bivens remedy if he were incarcerated in a prison run by the government, under the Court’s decision in Carlson v. Green. It is only happenstance that he was placed in a prison run by a private contractor, so he should have the same federal legal remedies available to him as if he were held in a government-run prison.

Justice Ginsburg argues that finding a federal cause of action here would serve the Bivens Court’s interests in the application of uniform federal law to such claims, and in creating a means to deter individuals from violating constitutional rights.

The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In addition to the 16% of the federal prison population in privately-run facilities, nearly half of federal immigration detainees are held in privately-run detention facilities. Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate, as compared to federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet today the Court has shut the federal courthouse doors to inmates who suffer as a result of these dangers.

Because the Supreme Court has ruled in favor of the corporate employees, inmates who are held in privately-run federal prisons are unable to sue under federal law when their constitutional rights are violated by their jailers.

Corporate Court Rules Once Again That Big Business May Force Arbitration

2012-01-10T16:21:00.001-05:00

Today the Supreme Court issued its decision in CompuCredit v. Greenwood (.pdf download), ruling once again that corporations may force individual consumers to arbitrate their claims, thereby restricting consumers’ access to the courts.

In an 8-1 opinion written by Justice Scalia, the Court held that the Credit Repair Organizations Act (CROA) is silent on whether or not claims under the Act may be arbitrated, therefore the Federal Arbitration Act (FAA) requires that the arbitration agreement be enforced.

Plaintiff consumers filed a class action lawsuit against CompuCredit and other credit providers after signing up for a credit card that was advertised to consumers with low or weak credit scores as helping to “rebuild your credit, “rebuild poor credit,” and “improve your credit rating.” Although the credit providers’ promotional materials stated that consumers would immediately receive $300 in available credit, consumers were charged $257 in fees in the first year, plus the interest that would accrue if the fees were not immediately paid. The consumers sued the companies for their deceitful tactics under the Credit Repair Organization Act (“CROA”) and California’s Unfair Competition Law. CompuCredit moved to dissolve the class action and force each plaintiff to settle his or her own complaint in binding arbitration.

The Court held today that the arbitration clause in CompuCredit’s take-it-or-leave-it contracts with consumers are enforceable, thereby preventing consumers from filing a class action lawsuit in court.

This conclusion is shocking, considering that Congress specifically required companies like CompuCredit to inform their customers: “You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.” Nonetheless, the Court found that this provision of the CROA only creates the right to receive the statement, not an underlying right to sue. Instead, the Court found that so long as parties could enforce the law in some way – such as arbitration – the CROA is not violated. The Court maintained that the “right to sue” language is “a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA,” and that “most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding.”

In dissent, Justice Ginsburg argued that the majority’s interpretation of the CROA’s “right to sue” “may be comprehensible to one trained to ‘think like a lawyer.’” However, she points out, Congress enacted the CROA to protect vulnerable consumers of “limited economic means,” who are “likely to read the words ‘right to sue’ to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration.” Particularly in a statute designed to prevent credit repair organizations from unfair and deceptive practices, Justice Ginsburg finds that Congress certainly did not intend to allow those organizations to deceive consumers by telling them they had a right that they do not in fact have – i.e., the right to sue.

By ruling for CompuCredit, the Supreme Court has found yet another way to close the courthouse doors to ordinary Americans. This decision follows on last year’s decision in AT&T v. Concepcion, in which the Court granted companies the right to draft contracts forcing consumers to arbitrate disputes one-by-one, without recourse to banding together in class actions. By preventing plaintiffs from being able to band together to sue CompuCredit and other credit providers for their deceitful practices, either in court or in arbitration, the Court has ensured that corporate defendants are unlikely to be held accountable for defrauding consumers.

Corporate Court Hears Argument in Union Fee Case

2012-01-10T08:02:00.000-05:00

Today, the Supreme Court will hear argument in the case of Knox v. SEIU, in which unions’ ability to engage in political advocacy on behalf of workers is at stake.

Service Employees International Union (SEIU) represents 1.8 million people in health care and public service. Non-member public employees are required by California state law to pay SEIU a “fair share fee” to defray the costs of union representation on their behalf. To that end, each year SEIU sends its non-members a notice, as required by the Supreme Court, which informs non-members of their fair share fee and of their right to object to paying non-chargeable expenditures including money spent for political advocacy. Those fees are calculated based upon expenses during the previous year and do not take into account unforeseen expenses.

In 2005, SEIU issued a valid annual notice informing non-members of the percentage of their dues which would be allocated to union representation and gave them 30 days to opt out of paying amounts associated with non-representation functions. The notice stated that dues were subject to change based on actual costs. A month later, SEIU imposed an emergency temporary assessment fee to defend against attacks on union plans and charged non-members who objected to the increase the percentage set forth in the initial notice as the amount associated with union representation. A group of nonmember state employees in California challenged this practice in a class action suit against SEIU.

Employees claim that SEIU’s failure to send out a supplemental notice when the union imposed a special assessment violated employees’ First and Fourteenth Amendments rights by forcing non-union employees to subsidize union political activities. SEIU counters that its notice was constitutionally and legally sufficient because the Supreme Court has recognized that the notice did not require an exact determination of the yearly expenditures, but merely a good prediction based upon the previous year’s audits. The Court previously recognized the impossibility of anticipating expenditures at the outset of the fee year and that once the union sent the original notice it need not send a second notice speculating how a fee increase might be spent. The district court found for the employees, but the U.S. Court of Appeals for the Ninth Circuit reversed, finding that a temporary fee increase did not require an additional notice.

If the Supreme Court rules against the SEIU, it will erode the power of unions to fight back against new political attacks by making it harder to raise additional funds to respond.

Asking the Supreme Court to Do the Right Thing

2012-01-09T15:57:00.000-05:00

The Alliance for Justice and ten other reform-minded organizations have sent a letter to the justices of the Supreme Court calling upon them to formally and voluntarily bind themselves to the Code of Conduct for United States Judges.

The Code of Conduct applies to all other members of the federal judiciary; only the nine justices of the Supreme Court are exempt. The members of the Court state that they look to the Code for guidance and act as if bound by it; however, behavior by some of the justices, including attending and speaking at overtly political gatherings and participating in fundraisers, belies this claim.

We call on the justices of the Supreme Court to take affirmative action to assure the public of their commitment to the highest standards of ethics by formally adopting and binding themselves to the Code of Conduct, action they can, and should, take on their own.

Add your voice! Sign our petition to Chief Justice Roberts and ask that the Supreme Court voluntarily adopt the Code of Conduct.

The Preclearance Flaw

2012-01-09T10:17:00.000-05:00

Guest post by Professor Bertrall Ross

The consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis (the Texas redistricting cases) highlight for the first time an important flaw in the preclearance mechanism under Section 5 of the Voting Rights Act that is central to the case. This flaw arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. In fact, congressional focus at the time of enactment in 1965 was on deterring jurisdictions with a history of voting discrimination (covered jurisdictions) from making discretionary changes to their voting laws that had the purpose or would have the effect of denying the vote on account of race. Congressional concerns about vote dilution would only arise later.

The covered jurisdictions under the preclearance mechanism as applied to discretionary voting changes had the option of maintaining the status quo with respect to their voting laws or seeking preclearance for any electoral changes that they chose to make. And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with the delay of obtaining preclearance would be borne by the covered jurisdiction because it would have to retain the prior law until the new law was approved.

Faced with this burden of delay, the covered jurisdiction could decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion. Alternatively, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would also provide expedited review while the declaratory action wound its way through the more deliberate judicial channels. Finally, the covered jurisdiction could proceed down the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia. When the voting change was discretionary, minority voters generally did not suffer any consequences from the delay since it could not go into effect until it was approved.

The flaw in the Section 5 pre-clearance mechanism arises from situations, such as reapportionment, where covered jurisdictions are required to make voting changes. The constitutional requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

Now, there is a dispute about whether Texas intentionally delayed the process of reapportionment; however, the arguments of the appellees in the case that the state should be penalized for the manner in which it sought preclearance — through the slow route of the declaratory judgment action in the District Court of the District of Columbia — seems a little misguided from a legal perspective. Sure, the State could have gone through the more expedited channels of the Department of Justice — and given the Texas’s history of violations of the Voting Rights Act, it is probable that the decision not to do so is driven in part by its minimal regard for the rights of minority voters — but there is nothing in the statute itself suggesting that it has to. And once it decided to proceed down the path of a judicial declaratory judgment action, it also seems wrong to suggest that they were legally required to forego pre-trial adjudication procedures such as summary judgment, even again recognizing the potentially nefarious motives for this decision that slowed the process.

What this case points to is the fact that the preclearance mechanism did not account for cases, like reapportionment cases, in which the burden of delay does not necessarily fall on the covered jurisdiction. In these cases, the change has to made – a new reapportionment plan has to be adopted for the 2012 elections to accord with the constitutional requirement of one person, one vote. And the fact remains that judicial process takes time and such process often will not be able accommodate the time constraints presented in cases like this one.

If Congress had anticipated the conundrum presented by the need to obtain preclearance for reapportionment in 1965, it would have likely forced covered jurisdictions to proceed down the more expedited path in such cases. And the fault of subsequent Congresses responsible for the re-authorization of the statute in 1970, 1975, 1982, and 2006 was that they simply assumed that covered jurisdictions would continue to proceed, as they had with respect to most other voting changes, through the more expedited channels of DOJ preclearance, even though the covered jurisdictions were not required to do so.

Assuming that the court rejects the court plan and adopts the state plan as the interim plan until preclearance is obtained, as I expect it will, this suggests the need for a congressional fix to the pre-clearance mechanism since the burden of delay will now fall on minority voters who face potential deprivations of their rights. Such a fix would force covered jurisdictions to obtain preclearance for changes necessitated by reapportionment through the more expedited preclearance channel involving the Department of Justice. I don’t see this fix as particularly politically feasible in the current context, but perhaps it could be made prior to the next decennial reapportionment assuming Section 5 is still around.

A version of this entry also appears on SCOTUSblog.
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Corporate Court To Hear Argument in Clean Water Act Case

2012-01-06T16:25:00.001-05:00

On Monday, the Supreme Court will hear argument in the case of Sackett v. EPA, in which the ability of the EPA to compel compliance with environmental laws is at stake.

The Sacketts bought a half-acre of land in a wetland area and, without seeking any environmental permits, filled it with dirt and rock in preparation for building a home. The EPA issued an order against the Sacketts to restore the property to its prior condition on the grounds that the land was wetlands protected by the Clean Water Act. The Sacketts went to court to seek court review of the EPA order before the EPA had an opportunity to bring an action in court to enforce the order.

The U.S. District Court for the District of Idaho dismissed the case on the grounds that judicial review of the order was improper. The Ninth Circuit affirmed the lower court’s dismissal. The Sacketts claim that denying them court review of the EPA’s order against them violates their due process rights under the Constitution. The EPA counters that there is no due process violation because the Sacketts can get court review once the agency seeks to enforce the order against them.

It is important to note that the Supreme Court recently denied the certiorari petition of General Electric in General Electric v. Jackson, a case very similar to this one challenging the constitutionality of administrative orders under Superfund. If the Supreme Court allows pre-enforcement review of orders under the Clean Water Act, it would likely follow that Superfund order authority would also be subject to such review.

If the Supreme Court allows the Sacketts to get court review of the order, it will hamper the ability of the EPA to enforce timely compliance with the Clean Water Act. Further, such a ruling could lead to future challenges of other important environmental regulations, such as the Clean Air Act and Superfund.

Supreme Court to Hear Texas Voting-Rights Case

2012-01-06T13:04:00.002-05:00

On Monday, the Supreme Court will hear argument in the consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis, in which the voting rights of the African-American and Latino citizens of Texas are at stake.

The state of Texas has experienced tremendous population growth and demographic change in recent years. The 2010 Census revealed that the state population had grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that growth came from the Latino population, which increased by 2.8 million. As a result, the state electoral maps required a major overhaul, both to bring the state legislative districts in line with the U.S. Constitution’s one-person, one-vote provision, and to apportion fairly the electoral districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the population increase.

Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of their history of voting discrimination on the basis of race. Under the act a jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the District Court for the District of DC. In this case, Texas chose to submit its newly drawn electoral maps to the DC District Court for approval, even though the path through the Attorney General is generally more expeditious.

While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court, alleging that the changes violate the Fourteenth Amendment, as well as a section of the Voting Rights Act which prohibits any state from adopting electoral procedures that undermine minority voting rights. The federal court found that it was not free to determine the legality of the legislature’s maps, as that issue was pending in the preclearance action before another court. However, the court also found that the legislatively-drawn maps could not go into effect without being precleared by the DC District Court. Accordingly, in view of the impending 2012 election season, the Texas court designed interim maps to be used until the preclearance issue is resolved.

The question before the Supreme Court is whether the federal court erred by creating such interim maps, and whether the court was required to adopt the legislature’s maps as the interim maps, despite the fact that they have not yet received the required preclearance. Additionally, in its reply brief, Texas has raised questions about the constitutionality of a section of the Voting Rights Act for the first time in this litigation.

If the Supreme Court sides with Texas, the voting rights of minority citizens will be significantly impaired. At best, if the Court approves the use of the legislatively-drawn maps while preclearance is pending, the Court will be allowing Texas to dilute minority voting rights during the 2012 elections. Even more devastating to minority rights, the Court could render a final decision that the legislatively-drawn maps are legitimate and do not violate the Voting Rights Act or the Constitution.

However, it is conceivable that the Court could go even further, and invalidate Section 5 of the Voting Rights Act altogether, even though that possibility was never suggested in this litigation until Texas submitted its reply brief. These harms are a matter of degree, but in any of the above scenarios, the voting rights of African-American and Latino citizens will suffer greatly if the Court sides with Texas.

Too Many Victims

2012-01-06T11:31:00.000-05:00

This Sunday is the anniversary of the tragic shootings in Tucson that left six dead and thirteen injured, including U.S. Congresswoman Gabrielle Giffords.

Please join the Brady Center to Prevent Gun Violence in honoring the victims and survivors of gun violence by attending or hosting a candlelight vigil on Sunday, January 8. "Too Many Victims" is a nationwide movement to remember those who lost their lives in Tucson. Family, friends, and strangers are invited to not only join the vigils, but to post tributes to the victims online at toomanyvictims.org.

Click here to find a vigil in your area, and to learn more about the Brady Center's work on behalf of victims, survivors, and their families.

Neoliberal Lochnerism: Can Government Balance Out Private Economic Power?

2012-01-06T10:55:00.000-05:00

Guest post by Professor Jedediah Purdy

A batch of recent Supreme Court decisions have increased constitutional protection for private economic power. They suggest a trend that, if it comes to fruition, will be to our economy what the infamous Lochner jurisprudence was to newly industrialized America a hundred years ago. The pattern is a new eagerness to strike down economic and political regulations in favor of the freedom to buy, sell, and spend. The most infamous example is Citizens United, which invalidated limits on corporate campaign spending under the First Amendment. In other cases, the Court has struck down state laws that try to limit the effect of wealth on elections. It has also held – this is more obscure, but important – that Vermont cannot restrict drug companies’ access to prescription records that they use to target their sales pitches

These decisions potentially go to the heart of whether government can act to balance out private economic power. They also mesh with two of today’s most influential right-wing ideas: first, the fierce mistrust of government, and, second, the economics-minded belief that most of life works best as a “free market,” and deregulation will make us all freer. Of course there’s plenty of reason for distrust, even disgust, with the government we have. But the further we go down the anti-government, pro-market line, the harder it becomes to strengthen democracy and build a politics that can address inequality.

The doctrinal key to the new libertarianism is free speech. The principle that Congress “shall make no law…abridging the freedom of speech” is a liberal touchstone. Recently, though, it has also become an anti-regulatory hammer. Constitutional protection of speech increasingly means protection of spending, advertising, and even markets in the data that advertisers use to craft their messages. In the 2010 opinion Citizens United v. Federal Election Commission, Justice Kennedy struck down a federal ban on certain corporate spending in elections. Limits on spending are limits on speech, he wrote, so the power to write a million-dollar check for a wave of last-minute advertising has about the same constitutional status as the right to post a blog entry making the case for your candidate. The principle that spending equals speech was not new, only amplified: It dated back to a 1976 case, Buckley v. Valeo, which overturned limits on individual spending as unconstitutional speech restrictions. The new part of Citizens United was the principle that corporations’ political speech (read: spending) enjoys the same constitutional protection as individuals’ speech. Taken together, these principles implied that Congress could not limit corporate spending to offset the enormous economic power of big companies; doing so was just as unconstitutional as banning a flesh-and-blood person from arguing for or against health-care reform. Kennedy’s language was dire: “The censorship we now confront is vast in its reach.” He warned that the government “has muffle[d] the voices that best represent the most significant segments of the economy.” The decision’s effect on campaigns was immediate and dramatic: The advocacy group Public Citizen reports that in the 2010 elections, spending by newly constitutionally empowered outside groups rose by more than 400 percent over the 2006 midterms.

A year later, Kennedy wrote the Court’s opinion in Sorrell v. IMS Health, the Vermont pharmaceutical decision. The backdrop of the case was the enormous amount that drug companies spend marketing their products to doctors and consumers—estimated at more than $30 billion annually in a 2008 study, which put marketing ahead of research and development as a share of industry spending. Pharmacies and data-miners serve drug marketers by selling them doctors’ prescription records, which the marketers use to target their sales efforts. Vermont had barred the sale (or giveaway) of prescription information and its use in marketing, except where physicians gave permission for their records to be used. The policy was meant to protect doctors’ and patients’ privacy, and also to offset some of the market power of the big drug companies, in the hope that more doctors would prescribe less-expensive generic medicines instead. Kennedy wrote that the law was unconstitutional because it burdened speech—i.e., marketing—based on the identity of the speaker (patent-holding pharmaceutical companies) and the content of their message (advertising of drugs). Kennedy described the issue as follows: “The State may not burden the speech of others in order to tilt public debate in a preferred direction. ‘The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.’” There is, of course, something otherworldly about describing as “public debate” companies’ targeted pitches to physicians.

As Justice Breyer pointed out in dissent, regulators control the form and content of information transfer all the time—for instance, in guidelines for public and shareholders’ communications by energy and financial companies, restrictions on the uses pharmaceutical companies may recommend for their drugs, and various controls on disclosure of patient information by doctors and hospitals. Many of these regulations are specific to the content of the speech and identity of the speaker, which was the constitutional problem with the Vermont law. It would be simplistic to say that those regulations are on the chopping block, but the reasoning of Sorrell puts their constitutionality in doubt. If nothing else, that reasoning creates a powerful and flexible tool for limiting the regulation of information markets, and further amplifies the Court’s solicitude for marketing as a core constitutional concern. For instance, post-2008 financial regulations requiring disclosure of standard-form information for certain financial products and services, or limiting the kinds of claims hedge funds or mortgage providers can make to clients, could be subject to constitutional attack.

The Supreme Court went down a similar road in the Gilded Age and afterward, defending laissez-faire economic principles against minimum wages, maximum hours, and other Progressive and New Deal regulation. The new cases have different doctrinal logic, and the economy has changed vastly, but the bottom lines are eerily alike: giving constitutional protection to unequal economic power in the name of personal liberty.

As the rise of industrial capitalism and a vast population of wage laborers made freedom of contract pervasively relevant at the turn of the last century, today an economy built on consumption and information makes the First Amendment a natural vehicle to constitutionalize transactions at the core of the market. Much of what happens in the American economy is, after all, some hybrid of marketing and information transfer. Products, images, information, ideas, and advertising are increasingly aspects of a single economic process.

For all these reasons, the First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedom of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy. This makes unequal economic power harder for democratic lawmaking to reach, because there are only a few ways to reduce the effects of economic inequality: redistribute wealth, guarantee certain goods (such as education or health care) regardless of wealth, and limit what the wealthy can do with their money. Constitutional protection of marketing and spending takes the last option off the table at a time when the other two are politically embattled. Whether in elections or in marketing and the vast data economy behind it, the market itself, with all its inequality, is ever more thoroughly constitutionalized as a realm of freedom.

This development is a milestone in the Court’s march away from a principle that it accepted with the New Deal: Buying and selling enjoy no special constitutional status, and legislatures can regulate markets and businesses to make life more equitable, safe, or healthful. When these policy decisions are opened to constitutional attack, the wealthy interests burdened by legislation can appeal from the political process to the Supreme Court. If they win, they send lawmakers back to square one, and, win or lose, they delay regulation and raise its costs. Moreover, these cases give wealthy interests a rhetorical leg up: They can denounce regulation as “censorship” with the Supreme Court and the Constitution behind them.

On the one hand, the anti-regulatory cases celebrate individual freedom. On the other hand, by “protecting” individual freedom from government interference, they help to guarantee that the inequality of the private marketplace will persist. Ironically, this often means that the individual freedom at stake—consumer choice, campaign spending, liberty of contract—is less worth having. Up close, the individual choice—buy, sell, hold—is unburdened by regulation; but pull back the camera, and you realize that the free choice is among a set of options that regulation helps to define—or does not, if the Constitution prevents it. Like the old Lochner-ism, today’s new anti-regulatory doctrines are rooted in ideas: that personal freedom has an economic dimension that the Constitution protects, and that government efforts to equalize or otherwise direct economic power are pernicious and constitutionally suspect. Like the old cases, the new ones end up protecting economic power as a form of freedom, which ties the hands of government and leaves lots of people less free.

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Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.

Ten Years Too Many

2012-01-06T08:58:00.000-05:00

Wednesday, January 11th marks the 10th anniversary of the arrival of the first prisoners at Guantanamo Bay. It will also be three years since President Obama pledged to close the detention facility.

Next Wednesday, the National Religious Campaign Against Torture (NRCAT) and broad a coalition of religious and human rights organizations will join together in Washington, DC to raise a voice of faith and conscience to mark this anniversary and send a message to the president and Congress that this is “10 Years Too Many."

You can learn more and register to participate in the rally here.

Noon - Rally at Lafayette Square (across from the White House)
1:00pm - Public Witness: a human chain of more than 2000 people, stretching from the White House to the Capitol
2:00pm - Interfaith Reception at NY Ave Presbyterian Church will follow the public witness
3:00pm - Interfaith Prayer Service at NY Ave Presbyterian Church led by Rev. J. Herbert Nelson (Director of the Washington Office of the Presbyterian Church USA), Rabbi Rachel Kahn-Troster (Rabbis for Human Rights-North America), and other religious leaders.

Ahead of this tragic anniversary, a new report by Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law was released detailing the Bush administration's torture policies. The report presents detailed evidence that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects. You can read more about the report here.

Report Outlines Bush Administration Torture Policy, Calls for Investigations and Prosecutions

2012-01-04T17:19:00.000-05:00

Human Rights USA, a non-profit human rights organization, released a report today entitled “Indefensible: A Reference for Prosecuting Torture and Other Felonies Committee by U.S. Officials Following September 11th.” The report presents detailed evidence that torture was the official policy of the Bush administration and that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects in the aftermath of September 11th. The report calls for repudiation of torture by the U.S. government and accountability for government officials who authorized the torture. It also serves as a how-to guide for prosecutions of these officials should be conducted going forward.

From 2002 to 2007, the United States Department of Justice sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency against detained suspected terrorists. These acts of torture were outlined and authorized in a series of secret "torture memos" drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ's Office of Legal Counsel. In the decade since the beginning of the Bush administration’s illegal anti-terrorism policies, not one torture survivor has been able to bring to justice the government officials who authorized the acts of torture. The Human Rights USA report lays the groundwork for litigation against government officials responsible for approving and using illegal interrogation techniques that were the official policy of the Bush administration.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law, and advocates for full accountability for those officials in the U.S. government who legitimized torture. AFJ applauds and supports the Human Rights USA’s efforts to bring further light to the torture policies and achieve accountability for torture.

The new report is a collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law. The report is available online.

To learn more about accountability for torture, visit our webpage.

Chief Justice Roberts Notes Ethics Controversies

2012-01-04T16:52:00.001-05:00

Today in the Huffington Post, AFJ President Nan Aron took a look at Chief Justice John Roberts' annual report on the federal judiciary. In his most recent report, Chief Justice Roberts devoted a fair amount of time to the ethics concerns AFJ and others have been raising in recent months. Unfortunately, as Nan documents, the chief justice's defense of his colleagues' behavior misses the mark.

Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.

Over 140 law professors, newspaper editorial boards, and groups like Alliance for Justice, Common Cause, and others, have called for increased accountability and transparency from a Court that is steadily and alarmingly losing the trust of the public. The Chief Justice's casual dismissal of the ethics issues as the consequence of "misconceptions" will further erode the Court's credibility.

Calls for reform have been precipitated by a series of actions by some justices that call into question their judgment about ethical matters. For example, Justices Antonin Scalia and Clarence Thomas famously--or infamously--attended events at overtly political strategy conferences hosted by the Koch Brothers, and Justices Scalia, Thomas, and Samuel Alito have headlined and lent their name and prestige of their office to fundraising events for conservative organizations. These activities are expressly prohibited by the Code of Conduct that governs all federal jurists. The Code contains both general and specific ethical rules for all federal judges--except the nine members of the Supreme Court.

The Chief Justice maintains that in spite of their exemption, "All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations." But the record shows that while some of them may consult it, they apparently don't feel compelled to actually follow it. That's' why reformers are calling on the Court to agree to be formally bound by its provisions.

Read the rest of Nan's analysis on the Huffington Post.

Press Release: AFJ Calls on Chief Justice Roberts to Address Ethics Issues in His Annual State of the Judiciary Report

2011-12-22T14:01:00.000-05:00

AFJ Calls on Chief Justice Roberts to Address Ethics Issues
in His Annual State of the Judiciary Report

Washington, D.C., December 22, 2011—Alliance for Justice President Nan Aron today issued the following open letter to Chief Justice John Roberts in advance of the release of his annual Year-End Report on the Federal Judiciary:

Dear Mr. Chief Justice:

With the time fast approaching for your annual Year-End Report on the Federal Judiciary, I am writing on behalf of Alliance for Justice to respectfully urge you to take advantage of this important opportunity to address questions that have arisen about the ethical standards governing the Supreme Court. We, among many others, are growing increasingly concerned that the recent decline in public approval of the Court is due in part not only to the well-publicized and ethically questionable actions of some justices, but also to the lack of clear and unequivocal precepts governing justices’ behavior.

As you know, all other federal jurists are subject to the Code of Conduct for United States Judges, yet the Supreme Court, our nation’s most important legal institution, is currently exempt. We understand that several justices and Court spokespeople have made public statements that the Code is used as guidance and that justices voluntarily follow its rules, but the recent record demonstrates that either that is not true for all justices or there is a lack of understanding of what the Code requires. For example, Justices Antonin Scalia and Clarence Thomas recently attended a fundraising dinner at which they were the honored guests and main speakers, and allowed their names and images to be used to publicize the event. All of these activities are prohibited by Canon 4C of the Code, which states that “a judge should not personally participate in fund-raising activities,” and which goes on to specify in commentary that a judge “may not be a speaker, a guest of honor, or featured on the program” of a fundraiser.

Incidents like this one demonstrate the need for clarity and certainty about the ethical standards which bind the Court. The nation can ill-afford to allow ethical uncertainties to cloud public perceptions of the Court, its justices, and, the decisions they make. The simplest, most direct approach is for the Court itself to make an explicit public declaration that the Code of Conduct governs justices’ behavior and to formally adopt it as the Court’s own rule.

We urge you to take the occasion of your 2011 Year-End Report to restate the Court’s obligation to maintain the highest ethical standards and to make a commitment to beginning the process of finally and officially adopting the Code of Conduct.

Sincerely,

Nan Aron
President, Alliance for Justice

* * *

Alliance for Justice has prepared a background report on the Federalist Society fundraising dinner of November 10, 2011, at which Justices Antonin Scalia and Clarence Thomas were the guests of honor, and which has the hallmarks of an activity that is prohibited by the Code of Conduct for United States Judges. It is available online at: www.afj.org/FederalistFundraiser.

In addition, extensive background materials on Supreme Court ethics rules and current controversies are available for download at www.aquestionofintegrity.org. The issue is also discussed in AFJ’s new short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court, which can be viewed online.

We need your support in the fight for a fair America

2011-12-22T13:46:00.000-05:00

As the year comes to an end and Congress leaves Washington, we find ourselves dealing with the mess left behind by the three-year campaign to delay final confirmation votes on President Barack Obama’s nominees to the federal courts.

The Senate session ended with 21 nominees waiting for final action on the Senate floor, in spite of the fact that virtually all of them faced no significant opposition. Those nominees spent an average of almost 200 days working their way through the glacially slow Senate confirmation process.

We all recognize the challenges we face in filling the federal judiciary's 100 vacancies, and we know that we need to be even more active in 2012.

Now we need your help. A special tax-deductible contribution of $25, $50, or $100 before the end of the year will help Alliance for Justice ensure that we have the resources to pressure the White House and Senate to nominate and confirm fair, qualified and independent judges.

AFJ is tirelessly working toward a judiciary that will protect the rights of all Americans, not just the privileged few. We will lead the fight against obstructionism by the Senate minority and the breakdown of the judicial confirmation process. The dangerous delays and partisan games are harming the everyday Americans who rely on fair judges and efficient courtrooms to protect all of our rights.

With high-profile court cases looming in 2012 and a heated election year warming up, America needs a fair, functioning, and fully-staffed judiciary more than ever. We’re pushing the Senate to move past the politics and partisan games, but we can’t do it alone.

We can’t afford to stop fighting now. Your support can help us get ready for the next round. Please support the fight for a fair America by making a donation to Alliance for Justice!

Outrageous: Senate leaves all 21 nominees high and dry

2011-12-20T13:47:00.000-05:00

** UPDATE: THIS ACTION ALERT IS NO LONGER ACTIVE **

Thanks to AFJ members, more than 33,000 messages were sent to Capitol Hill asking that the Senate hold final confirmation votes on the 21 judicial nominees who have been cleared by the Judiciary Committee. These urgently needed and well-qualified nominees are ready to serve in some of this nation's most overworked courtrooms, if only the Senate would schedule a simple yes-or-no vote.

But the Senate left town without finishing its business. According to The Hill newspaper, here's what happened over the weekend:

"Senate Republican Leader Mitch McConnell (R-Ky.) on Saturday afternoon blocked more than 50 judicial and executive branch nominees, demanding assurances that President Obama not make recess appointments during Christmas break... Republicans are wary of Obama appointing a director to the new agency tasked with implementing Wall Street reform during the congressional recess."

With America's judicial vacancy crisis growing worse by the day, Senator McConnell blocked votes in order to protect the big corporations that caused our economic crisis.

Here's what we're going to do about it. Remember those 33,000 emails that have already been sent to Capitol Hill?

We want Senator McConnell to get just as many emails from everyday Americans who are fed up with the games, fed up with the gridlock, and fed up with McConnell's willingness to use our judicial system as a hostage in his political schemes. Let's all remind Senator McConnell that fair and functioning courts are vital to a healthy democracy.

Press Release: U.S. Senate Takes Holiday Break, Leaving a Lump of Coal in the Stocking of America's Federal Courts

2011-12-20T12:44:00.000-05:00

U.S. Senate Takes Holiday Break, Leaving a Lump of Coal
in the Stocking of America's Federal Courts

Washington, D.C., December 20, 2011—Once again, the United States Senate has left town for a holiday without fulfilling its obligation to fully staff the federal courts and ensure that justice is available to all Americans. With 100 judicial vacancies in the federal court system, Senate Republicans continued their widely condemned tactics of obstruction and endless delay, and prevented final consideration of 21 nominees who have been cleared by the Senate Judiciary Committee, in most cases with no opposition, and who simply need a final yes-or-no vote to take their seats on the seriously understaffed federal bench.

Sadly, 2011 will end in the same way it began, with one in nine federal judgeships unfilled and Republican promises to restore the nominations process to fairness and rationality in tatters. When the Senate returns in January it will find 37 of the President’s nominees in the nominations pipeline, either in committee or on the floor, and it will have an opportunity to both restore faith in the constitutional nominations process and to bring the woefully understaffed federal courts back to health.

Alliance for Justice President Nan Aron called on the Senate to mend its ways in the coming year, saying, “All Americans should be saddened, if not infuriated, by the endless political games being played with our federal court system. There seems to be no limit to the depths to which Republican senators will sink to appease their most extreme constituencies. Deals for action are cut by the leadership and then broken under pressure from hyper-partisan ideologues. The president’s nominees, all distinguished, highly qualified men and women, are treated with disrespect and stuck in legislative limbo for months on end. The courts are left without enough judges to do their work. Senate traditions are trashed. National polls showing support for Congress at record lows prove that the American people are tired of this kind of gridlock and gamesmanship. Obviously, we have run out of time for action this year, but for the sake of the nation, 2012 must tell a different story. Starting in January, willful obstruction must end and the confirmation process must be allowed to proceed in a rational and constructive way.”

New Report Again Undercuts Arguments for "Tort Reform"

2011-12-16T14:28:00.000-05:00

Yesterday, Americans for Insurance Reform released an important report on the insurance industry entitled “Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America.” The lengthy report, based on a study of permissive regulatory environments, decades of industry financial data, and candid quotations from industry and public officials, offers another strong refutation of "tort reform" talking points by shedding much-needed light on the true reasons for the rise and fall of insurance rates.

Industry lobbyists rarely fail to blame liability insurance “crises” for periodic premium rate increases, and almost invariably proceed to lobby Congress and state legislatures to enact “tort reform” measures, which would make it more difficult for everyday Americans to obtain compensation when injured. This new report convincingly refutes that argument, and instead demonstrates that the particularities of the insurance industry and the lax regulatory environment contribute to this cycle of “hard” and “soft” insurance markets.

As the report lays out in great detail, the property/casualty insurance industry does not generally make its profits as one might expect – from charging more in premiums than it pays out in compensation. Rather, profits stem largely from using the money paid in premiums and investing it in securities. Indeed, insurance companies almost always pay out more in compensation than they take in through premiums, because they can make up the difference in the interim through investment. Profit is made, therefore, primarily by getting more premium dollars to invest. For this reason, during “soft” market periods, which are typical, insurance companies compete heavily for premiums to invest, often comparatively underpricing policies to obtain money to invest.

But when a “hard” market arrives, when investments underperform, or when price competition on premium rates cuts into investment profits, insurance companies point not to their own mismanagement, but to the lack of “tort reform” as the core problem. Insurance companies, who are statutorily exempt from federal antitrust laws, then collude in hiking prices and cutting coverage, and can point to their “underwriting losses” to impel legislative action.

This report comes at a time when the insurance market is poised to enter a “hard” phase, and we can expect insurance companies to press for laws that restrict consumer rights. It is important to be ready to answer these spurious claims, and Americans for Insurance Reform has done the public a great service in issuing this report.

Senate Confirms Christen to the Ninth Circuit

2011-12-16T10:22:00.000-05:00

Yesterday afternoon the Senate confirmed Morgan Christen to the United States Ninth Circuit Court of Appeals by a bipartisan vote of 95-3, with only Senators Jim DeMint, Rand Paul, and David Vitter voting no. Once sworn in, Christen will be the first Alaksan woman to serve on the Ninth Circuit.

President Obama nominated Christen to the seat on May 18, 2011; on September 8 she was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of her nomination, Christen waited 212 days to be confirmed to the seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

Senate Judiciary Committee Hearing for Ninth Circuit Nominee

2011-12-13T16:42:00.004-05:00

The Senate Judiciary Committee held a confirmation hearing for Paul Watford to the United States Circuit Court for the Ninth Circuit. Senator Whitehouse (D-RI) chaired the hearing, opening the proceedings by noting the numerous judicial vacancies in the Ninth Circuit and quoting a recent letter from the circuit’s Chief Judge Alex Kozinski who said, “[W]e fear that the public will suffer unless our vacancies are filled very promptly.” Also attending the hearing were Senator Feinstein (D-CA), who introduced the nominee, and Senator Grassley (R-IA), the ranking Republican member. Senator Whitehouse remarked at its conclusion that the hearing was notably uneventful.

Watford was nominated to the seat on October 17, 2011. If confirmed, he will be the fourth African American to serve on the Ninth Circuit, and just one of two active African American judges on the 29-member court. There are five vacancies on the Court of Appeals for the Ninth Circuit—four current vacancies, all of them deemed judicial emergencies by the Administrative Office of the U.S. Courts—and one future vacancy. For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

Supreme Court Grants Cert in Case Challenging Arizona Immigration Law

2011-12-13T16:41:00.003-05:00

Yesterday the Supreme Court agreed to hear the case of Arizona v. United States, in which the validity of Arizona’s draconian immigration law is at issue.

Last year, Arizona passed S.B. 1070, a law designed to make it all but impossible for illegal immigrants to live or work in the state. A number of states have since passed copycat laws, in response to what they view as the federal government’s inadequate efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-reaching consequences that even the state attorney general has called for revisions.

In this suit, the United States has sought to enjoin enforcement of Arizona’s law as preempted under the Supremacy Clause of the Constitution. In particular, the U.S. has challenged four provisions of the law as incompatible with federal immigration laws and policies. The challenged provisions (1) require that state police ascertain the immigration status of any individual they stop or arrest if they have reasonable suspicion to believe that the person is here illegally (additionally, the person, once arrested, cannot be released until the federal government verifies his or her legal status); (2) make it a violation of law for a person to fail to obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work or to try to work; and (4) authorize warrantless arrests for individuals who the state police have probable cause to believe has committed any act anywhere that would make them deportable under federal law.

While Arizona maintains that its law falls under the “cooperative” state and local efforts authorized by the Immigration and Naturalization Act (“INA”), the U.S. argues that the Arizona law is clearly meant to supplant federal law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer’s signing statement, she specifically noted the federal government’s “misguided policy” on immigration enforcement.

The district court granted an injunction blocking the enforcement of all four provisions of Arizona’s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona has now appealed to the Supreme Court.

The U.S. urged the Court to reject the case for review as premature until other courts of appeal have had an opportunity to consider other similar state laws. For example, legal challenges have been raised to provisions of Alabama’s parallel law. Yesterday, a federal district court enjoined enforcement of a provision of that law, known as H.B. 56, which criminalizes “business transactions” between state officials and people who cannot prove lawful immigration status. As in Arizona v. United States, the district court’s ruling in that case was based on the plaintiffs’ likelihood of success on their claims of preemption. Undoubtedly, Alabama will appeal that injunction to the Court of Appeals for the Eleventh Circuit, but because the Alabama and Arizona state laws differ in their specifics, the Supreme Court’s ruling in the Arizona case is likely not to resolve the issues in the Alabama case. Nonetheless, the Supreme Court has chosen to weigh in on yet another controversial and political topic in an election year.

If the Supreme Court sides with Arizona, not only will it disrupt the federal government’s ability to maintain a uniform and effective federal immigration policy, but potentially millions of hard-working, law-abiding immigrant families with American children will be forced to live in the shadows, or be driven from the states where they have made valuable contributions to the community and the economy.

Corporate Court Grants Cert in Overtime Pay Case

2011-12-09T16:53:00.001-05:00

On November 28, the Corporate Court granted cert in the case of Christopher v. SmithKline Beecham Corp. At stake in this case is the ability of employees to get time-and-a-half pay for overtime work, as guaranteed under federal law.

This case arose from a dispute between Michael Shane Christopher and his employer, SmithKline Beecham, a drug company. As a “pharmaceutical representative,” Christopher’s work consisted mainly of visiting doctors’ offices and encouraging doctors to prescribe appropriate SmithKline drugs to patients. He sometimes worked more than 40 hours per week, but did not receive time-and-a-half pay for his overtime work. He and another plaintiff sued on behalf of themselves and a class of all other similar employees working for SmithKline for time-and-a-half pay, which is generally guaranteed to workers under the federal Fair Labor Standards Act (FLSA).

SmithKline claims that Christopher is not entitled to overtime pay because he is an “outside salesman,” and thus falls into one of several narrowly-drawn classes of employees exempted from the FLSA’s overtime pay requirement. Christopher argues that he should not be categorized as an outside salesman because he does not actually sell anything.

Through the FLSA, Congress delegated to the Secretary of Labor the authority to define terms such as “outside salesman.” The Secretary of Labor has issued regulations providing that an “outside salesman” must in some sense make sales. According to the secretary, who filed an amicus brief in this and a related case, these regulations do not exempt drug companies from paying pharmaceutical representatives like Christopher overtime.

It is a well-established principle of federal law that courts generally defer to agencies’ interpretations of statutes and of their own regulations. However, in this case, the Ninth Circuit Court of Appeals agreed with SmithKline that the secretary’s interpretation deserved no deference because the secretary merely “parroted” federal law in writing the regulations. As a result, the Ninth Circuit substituted its judgment for the judgment of the agency, and decided that Christopher was in fact an outside salesman who did not merit overtime pay.

Although this case raises the technical question of the degree of deference a reviewing court should give to agency interpretations of its own regulations, it is important to remember the core dispute at issue in this case. Christopher worked longer hours than a full-time employee is expected to work. Federal law demands that such workers receive overtime pay, unless they fall into specific, narrowly drawn categories. Congress delegated the authority to define the boundaries of these categories to the Secretary of Labor, who has determined that employees in Christopher’s position should receive overtime pay.

If the Supreme Court sides with the drug companies, it will not only constitute an earthquake in administrative law, it would also deny overtime to roughly 90,000 drug company employees in Christopher’s situation.

Press Release: AFJ Condemns Senate Failure to Confirm Caitlin Halligan

2011-12-06T17:27:00.001-05:00

Washington, D.C., December 6, 2011—Alliance for Justice President Nan Aron issued the following statement on the failure to end the Republican filibuster of the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the D.C. Circuit:

Today’s vote by Republicans to filibuster the nomination of Caitlin Halligan has shattered any pretense that the judicial confirmation process is being conducted in a rational or honest manner. Ms. Halligan’s record of achievement in public service and private practice is impeccable and there is no conceivable justification for denying her a final vote. The notion advanced by her opponents that she is somehow out of the mainstream of legal thought or holds extreme views is ludicrous and reflects a breathtaking level of dishonesty and hypocrisy. Today’s vote, combined with a three-year record of unrelenting obstruction, demonstrates that Senate Republicans have abandoned fairness and responsibility and are forcing the woefully understaffed federal judiciary to pay the price for their increasingly shrill and destructive partisan games. It is clear beyond any doubt that the 2005 agreement forbidding filibusters except under “extraordinary circumstances” is now dead and that Republicans have broken their promise to the American people to deal with judicial nominations in a fair and principled way. Today’s vote is a tragedy for the country, for the judiciary, for Senate tradition, and for Caitlin Halligan, who has been unjustly denied an opportunity to serve our nation.

* * *

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

Senate Confirms Four Nominees to District Court Seats

2011-12-06T08:36:00.001-05:00

Last night, the Senate confirmed the following to be United States District Court judges: Edgardo Ramos in the Southern District of New York; Andrew L. Carter, Jr. in the Southern District of New York; James Rodney Gilstrap in the Eastern District of Texas; and Dana L. Christensen in the District of Montana.

Judge Ramos was confirmed by a bipartisan vote of 89-0. The other three judges were confirmed by unanimous voice vote.

It has taken an average of 205 days for the four nominees to move through the Senate confirmation process, with Judge Gilstrap waiting 201 days to be confirmed to fill his judicial emergency seat in Texas.

The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.

Is This the Last Senate Action on Judges for 2011?

2011-12-05T15:28:00.000-05:00

Tonight, the Senate will finally hold votes on four long-pending judicial nominees: Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen, all of whom have been waiting more than 200 days for their votes. And tomorrow at noon, there will be a vote to break a Republican filibuster on the nomination of Caitlin Halligan, who has been waiting over 430 days for her vote.

The filibuster of Halligan's nomination has drawn intense criticism from legal scholars who point to her distinguished record and "unanimously well-qualified" rating from the American Bar Association. But instead of voting on the merits of her nomination, partisan obstruction in the Senate has led to a filibuster, which may keep her from even getting a final yes-or-no vote.

Here are the shocking figures:

25 pending nominees
23 with very strong bipartisan support
21 unopposed in committee
10 to fill judicial emergencies
And if votes were held today on all nominees, their average wait time would be 177 days

Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and hold confirmation votes on all pending nominees, including Caitlin Halligan!

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UPDATE 12/5, 6:07 p.m.: The Senate has just voted to confirm Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen. That's great news, but does not end the Senate's obligation to the American people or to the 21 nominees still waiting on the Senate floor.

New Study Shows Twombly/Iqbal Block Access to Justice

2011-11-30T13:35:00.001-05:00

A new study shows that the heightened pleading standard established by the Supreme Court in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) is preventing ordinary Americans from having their day in court.

For fifty years, plaintiffs were required only to plead a “short plain statement” of facts, under Conley v. Gibson (1957), in order to reach the discovery stage of litigation. The ability to conduct discovery is a crucial component of access to justice, because defendants often possess the evidence that plaintiffs need to prove their cases.

In Twombly and Iqbal, the Roberts Court introduced a stricter “plausibility” standard, requiring a plaintiff to plead factual content from which a court can draw the reasonable inference that the defendant is liable for the misconduct alleged. If a plaintiff is not able to plead sufficient facts to convince the court to allow her claims to proceed, she will never be able to conduct the discovery that might have led to that factual information.

In the face of widespread criticism of the new pleading standard, defenders of the Court’s rulings have pointed to a study published by the Federal Judicial Center in March 2011 that reported no increase in the rate at which federal judges grantedg motions to dismiss without leave to amend in the wake of Iqbal and Twombley.

However, a new study by Jonah Gelbach, forthcoming in the Yale Law Journal, indicates that simply comparing dismissal rates pre- and post-Twombly and Iqbal does not reveal the true effects of those decisions. Rather, Gelbach highlights that defendants are 50 percent more likely to file a motion to dismiss post-Twombly and Iqbal, presumably because they recognize that the heightened pleading standard increases their chances of getting the claims against them dismissed. Thus, even if the overall dismissal rate has not changed, a higher percentage of cases are being dismissed. Gelbach concludes that 20 percent more cases are dismissed before discovery can be conducted under Twombly/Iqbal than were dismissed under Conley.

Senate Confirms Droney to the Second Circuit

2011-11-29T10:17:00.001-05:00

The Senate has confirmed Judge Christopher Droney to the United States Second Circuit Court of Appeals by a bipartisan vote of 88-0.

President Obama nominated Droney to the seat on May 4, 2011; on July 21 he was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of his nomination, he has been waiting 209 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 20 of whom were reported out of committee either unanimously or with strong bipartisan support.

Corporate Court to Hear Argument in Insider Trading Case

2011-11-28T09:12:00.000-05:00

Tomorrow the Supreme Court will hear argument in the case of Credit Suisse Securities v. Simmonds. The case arises out of a series of Initial Public Offerings (IPOs) during the tech bubble of the late 1990s. The plaintiff, Vanessa Simmonds, was an investor who owned tech stocks underwritten by Credit Suisse and other investment banks. Simmonds alleges that underwriters for these IPOs manipulated stock prices using short-swing transactions in violation of the insider trading laws.

The main issue before the Supreme Court will be when the insider trading law's two-year time limit to bring suits begins to run: when the profit is realized by insiders or when the required public disclosures are filed.

Credit Suisse argues that actions must be brought within two years of the profits being realized and therefore Simmonds’ suit is time-barred. Simmonds argues that because insiders never filed the required disclosures when the profit was realized, the two-year limitations period never began to run. The district court dismissed the complaint on the grounds that the two-year limit had expired, but the Ninth Circuit agreed with Simmonds and reversed.

If the Supreme Court finds that the suit was time-barred, corporate insiders will be able to avoid liability for their illegal insider trading activity by violating the disclosure requirement.

Corporate Court to Hear Argument in Robocall Case

2011-11-23T08:59:00.001-05:00

On Monday, the Supreme Court will hear argument in the case of Mims v. Arrow Financial Services. Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans. Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails. Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (TCPA), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone. The district court dismissed the complaint and the Eleventh Circuit upheld the dismissal on the grounds that Congress gave state courts exclusive jurisdiction over TCPA lawsuits and that, therefore, federal courts lack subject matter jurisdiction. The Supreme Court granted Mims’ appeal.

A brief filed by the National Association of Consumer Advocates (an AFJ member organization) and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.” The organizations added that “this unfortunate state of affairs is the failure of the TCPA’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.”

The result of the Eleventh Circuit’s rule, according to the brief, is that differing state standards apply to the TCPA that unfairly disadvantage some state residents. “Differences in degrees of federal consumer protection based on state residency are unacceptable; that the TCPA’s minimal standards of privacy are unenforceable now in at least two states – Maryland and Texas – is a result that should attain only with the explicit and unambiguous Congressional approval that is lacking here.”

If the Supreme Court sides with Arrow, consumers will be far less capable of holding companies accountable for unlawful telephone harassment in federal court and might enjoy weaker consumer protections based on the state in which they live.

Call Them What They Are: Bills to Kill Laws Corporations Don’t Like

2011-11-22T15:24:00.001-05:00

Two dangerous bills that would hobble the ability of federal agencies to protect the public interest are likely to hit the House floor by the end of this month. If enacted, the bills would effectively allow future Congresses, the courts, and special interests to undermine laws intended to protect the well-being of workers, children, seniors, and the public as a whole.

Generally, when Congress passes a law and the president signs it, an agency is given the job of determining the best ways to implement the law by creating comprehensive and effective rules and regulations. The agency is tasked with this responsibility in the text of the statute, which mandates the results that must be achieved and the boundaries that guide the process. Working to fulfill these Congressional mandates, the agency draws on its expertise to find the best ways for the goals of the law to be realized in service of the public good.

The proposed bills would severely interfere with the rulemaking process, virtually assuring that new laws passed by Congress would not take effect for over a decade, if ever. They would also open the doors to undermining current laws such as the Clean Air Act and the Food Safety Modernization Act, allowing lawmakers influenced by special interests to halt new rules without ever having to take a direct stance against a law popular with their constituents.

The Regulatory Accountability Act (H.R. 3010) is a dream come true for corporate special interests pushing to block or weaken regulatory safeguards in order to maximize profits. It would make bottom-line costs to businesses the number one factor in evaluating all government rules, with public health and safety only a secondary consideration. This bill would upend generations of health, safety, and environmental regulations and laws designed to protect citizens from discrimination and corporate abuses by drastically changing the process of how rules are made.

A bottom-line cost analysis would trump any other language in laws that say the top priority should be to do the best job to protect Americans; money and profits would undermine the safety and well-being of people. Quantitative costs would be pitted against the more intangible qualitative benefits as agencies would be required to adopt the “least costly” possible option for every potential rule that could be considered. By this standard, agencies would find themselves on a never-ending treadmill of analyzing every possible alternative to a proposed rule when seeking to address immediate and current threats such as Salmonella-tainted food and the immediate and ongoing impact of disasters like the BP oil spill. Just as importantly, the bill would virtually end the ability of agencies to implement preventative safety measures that could keep these and other harmful acts from happening in the first place.

The bill would also open the floodgates for new legal challenges that would tip the balance of rule-making power in favor of those with enough money, time, and power to hire and retain high-cost legal assistance to mount sustained objections to agency action. The entire process could be halted by anyone bringing a court challenge to claim that another, less costly, rule was not considered or decided upon, at which point judges would be thrust into the role of rule-making by inserting their own opinion about whether quantifiable costs outweigh the qualitative benefits of a rule. The act virtually mandates that judges enter the legislative and executive arenas by becoming regulators.

The Regulations from the Executive in Need of Scrutiny Act of 2011 (H.R. 10/S. 299), also known as “REINS,” is even more blatant in its attempt to bring regulations to a screeching halt. REINS would require congressional approval of all major rules within 70 days, essentially asking Congress to go back and re-legislate the legislation it has already passed and sent on to the agencies for enforcement. It would give those on the losing side of a Congressional vote a second bite at the apple, letting them block, piece by piece, the ways in which laws take effect. It provides a sleight-of-hand way to freeze a broad array of regulations ranging from clean air protections to workplace safety regulations to food and toy safety measures to controls on Wall Street.

Our federal agencies exist to protect people, not to save industries money. Blocking, weakening or delaying critical standards and safeguards will result in more illness caused by unsafe food; more erosion of the quality of our air and water; more preventable job injuries that harm workers and employers; continued vulnerability to economic catastrophes; and greater loss of privacy. What’s more, multiple surveys show that regulations are not a major concern for small businesses – what they need are more customers and more certainty about our economy’s future.

The Regulatory Accountability Act and REINS Act protect big businesses at the expense of our communities and families.

Click here to learn more about the public protections that will be affected by RAA.

A Wolf in Sheep's Pajamas: First American v. Edwards

2011-11-22T08:07:00.000-05:00

Guest Post by Professor Amanda Leiter

Unless you’ve recently bought property, you probably aren’t familiar with the Real Estate Settlement Procedures Act, or RESPA. And unless you’re familiar with RESPA, you probably haven’t paid attention to the pending U.S. Supreme Court case First American v. Edwards.

But First American deserves your attention because it’s a wolf in misleadingly sleep-inducing sheep’s pajamas.

The case, which the Court will hear on November 28, involves homebuyer Denise Edwards’ claim that First American paid kickbacks to a real estate settlement company in exchange for that company’s promise to offer only First American-brand title insurance. As a result of this backroom deal, Ms. Edwards and other homebuyers paid a fixed price for settlement and insurance, and couldn’t shop around for lower-priced insurance. If Ms. Edwards’ claims are true, then First American’s payments to the settlement company violated RESPA, and First American must pay Ms. Edwards and like homebuyers three times their settlement costs.

The question before the Court, though, is not whether First American broke the law, but whether a slippery constitutional doctrine called “standing” prevents Ms. Edwards and other homeowners from going to court in the first place.

“Standing” rules require a plaintiff to prove she suffered a concrete harm from the defendant’s unlawful conduct. In statutes like RESPA, however, Congress gave citizens the right to sue over statutory violations without proving that they suffered an economic harm. Thus, under RESPA, a homebuyer can sue a settlement company that paid kickbacks to a title insurer even if the homebuyer can’t prove that as a result, she paid more for settlement services.

Why did Congress allow homeowners to sue over kickbacks that may not have directly injured them? Because legislators understood two things. First, kickbacks harm all homebuyers by distorting the market for settlement products. Second, individual homebuyers would have a hard time proving those market distortions because they have little information about transactions other than their own. Thus, Congress sought to level the playing field between homebuyers and settlement companies by easing homebuyers’ access to court.

Congress has used this approach in many contexts. The National Environmental Policy Act (NEPA), for example, seeks to improve access to information about the environmental consequences of government actions, and individual citizens can sue to enforce NEPA’s terms. An individual NEPA plaintiff must prove that she has a connection to the government action at issue in her case—for example, that she likes to hike on the land that the government proposes to develop—but she does not have to prove that the NEPA violation directly harmed that land. Why did NEPA’s drafters allow citizens to sue over violations that may not have directly affected them? Again, because Congress recognized that the absence of information about environmental impacts harms the public at large, but citizens would have difficulty proving specific injuries.

There are many other examples. Banking and medical privacy laws empower individuals to sue if their personal information is unlawfully disclosed, whether or not they can prove the information has been misused. The Fair Credit Reporting Act empowers consumers to sue when a reporting agency violates measures aimed at avoiding identity theft, whether or not they can prove their identities were stolen.

In short, RESPA is one of numerous statutes that protect the public and empower individuals to enforce the resulting protections. The fate of all such statutes hangs in the balance in First American. If the Court decides that standing doctrines bar Ms. Edwards from pursuing her RESPA claims, then the same doctrines will bar nature lovers, and bank account holders, and patients, and credit card users—all of us—from enforcing the consumer and natural resource protections that Congress has enacted over the last half-century.

An Associate Professor of Law at American University's Washington College of Law, Amanda Leiter teaches environmental law, administrative law, and torts, and her research interests include administrative law and process, and domestic environmental law and policy. Before joining the AU faculty in the fall of 2011, Professor Leiter was an associate professor at Catholic University’s Columbus School of Law. Prior to that, she was a litigator at the Natural Resources Defense Council, where she developed and pursued federal appeals court challenges to EPA rules governing industrial air pollution. Professor Leiter clerked for Judge Nancy Gertner of the Federal District Court for the District of Massachusetts; for Judge David Tatel of the D.C. Circuit Court of Appeals; and for Supreme Court Justice John Paul Stevens. She is admitted to practice before the District of Columbia, the States of Colorado and Massachusetts, and the U.S. Supreme Court.

23 Pending Nominees, Waiting an Average of 184 Days

2011-11-17T16:06:00.000-05:00

There are currently 23 nominees awaiting final votes in the Senate. They've had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee -- most without any opposition at all.

Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered "judicial emergencies" -- and Droney's nomination to the Second Circuit has been pending nearly 200 days.

Ronnie Abrams (NY)	Cathy Bencivegno (CA)	Margo Brodie (NY)	Andrew Carter (NY)
Morgan Christen (AK)	Dana Christensen (MT)	Rudolph Contreras (DC)	Christopher Droney (2nd CCA)
Miranda Du (NV)	Michael Fitzgerald (CA)	Jesse Furman (NY)	John Gerrard (NE)
James Gilstrap (TX)	Michael Green (NY)	Gina Groh (WV)	Caitlin Halligan (DC CCA)
Adalberto Jordan (11th CCA)	Susie Morgan (LA)	David Nuffer (UT)	Mary Phillips (MO)
Edgardo Ramos (NY)	Thomas Rice (WA)	Stephanie Thacker (4th CCA)

It's time for the Senate to do its job and hold votes on these 23 nominees. Click here to send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.

Here are the shocking figures:

23 pending nominees
21 with very strong bipartisan support
19 unopposed in committee
8 to fill judicial emergencies
And if votes were held today, the nominees' average wait time would be 184 days

Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama's first term lower than for any president in modern history.

Please send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and call for a vote on all pending nominees!

A Question of Integrity: San Francisco Premiere

2011-11-17T09:55:00.000-05:00

On Monday evening, Alliance for Justice teamed with California Common Cause and CREDO Action for the screening of the new AFJ film “A Question of Integrity: Politics, Ethics, and the Supreme Court.” After the screening of the film, there was a panel discussion featuring experts on the issue, followed by a Q&A with the audience.

Lee Fang, the investigative researcher and blogger at ThinkProgress who discovered the participation of Justices Thomas, Alito, and Scalia at secret meetings, including big-ticket fundraisers held by conservative political funders, explained how he had been investigating the Tea Party in 2009 when he learned that the billionaire Koch brothers and various industry groups were funding Tea Party activism. Then, in October of 2010, Fang received an anonymous package about a Koch brothers policy summit being held in Southern California in early 2011. Digging deeper, Fang found that these events had been taking place regularly, and had advertised the presence of Supreme Court Justices Thomas and Alito. Fang actually confronted Justice Alito at one of these events, asking him whether he felt like his presence there was appropriate, to which Justice Alito responded that his presence there was "not important."

Richard Zitrin, Professor in Legal Ethics at the University of California-Hastings, said it is unconscionable that Supreme Court justices would be taking part in these kinds of activities, which would violate the Code of Conduct for U.S. Judges that applies to all other federal judges. Zitrin was adamant that, because Supreme Court justices are afforded such respect by our legal system, it makes no sense to hold them to a lower standard than other federal judges when it comes to the appearance of impropriety.

Derek Cressman, the Western States Regional Director at Common Cause, has been on the trail of the Kochs – and many of their ethically questionable political practices – since the revelation of their secret retreats. He noted that Supreme Court justices should not have to sequester themselves, but they should refrain from participating in events where they appear to be cozying up to major political funders.

Judge Marilyn Patel, showed deference to her colleagues on the bench and did not address calls for justices to resign, but she explained that, for justice to be administered, there cannot be any appearance of judicial impropriety. She added that there is a strong argument that the Code of Conduct as it is currently written is actually applicable to Supreme Court justices, notwithstanding the justices’ current view that it is not binding. Moreover, she explained that, because Supreme Court justices are given lifetime tenure, we need to confirm justices who will uphold high ethical standards.

Zitrin suggested that, although he generally does not like litmus tests for determining judge qualifications, pledging adherence to the Code of Conduct, whether or not it is currently required of the justices, should be necessary for any nominated justice to be confirmed in the Senate.

Asked about the distinction between appearing at an event and at a fundraiser, Judge Patel cited guidance by the Administrative Council of Courts advising against participation by judges as keynote speakers at fundraisers for nonprofits. As far as whether it is hard to determine if an event is a fundraiser, she noted that she confirmed with Alliance for Justice that Monday's film screening and panel discussion was not a fundraiser before agreeing to participate. She also said that if a judge is asked to speak at a $250 per plate event, that event is obviously a fundraiser, and any judge who is unable to determine that would “really be out of touch.”

Judge Patel noted that some people oppose recusal by Supreme Court justices because they cannot be replaced by another judge when they abstain from hearing a case. She responds to that argument by pointing out that if the justices were to simply comply with the Code of Conduct, there would rarely be a need for them to recuse themselves.

The film premiered in Washington on November 1, and a New York premiere screening is planned for early December. Stay tuned for more information on future screenings!

For more on judicial ethics and to view the film, please visit www.aquestionofintegrity.org.

Senate Confirms Two Women To District Court Seats

2011-11-15T15:56:00.001-05:00

The Senate has confirmed two women to be United States District Court judges. Sharon Gleason was confirmed to the District Court of Alaska by a bipartisan vote of 87-8 and Yvonne Gonzales Rogers to the Northern District of California by a bipartisan vote of 89-6.

Gleason is the first woman to serve as a federal district judge in Alaska. Nominated to the seat on April 6, 2011, she has waited 224 days to be confirmed. Rogers has waited 196 days from nomination to confirmation.

The Senate’s action leaves 45 judicial nominees pending in the Senate. Twenty-three of these nominees are waiting on the floor for their confirmation votes; 21 of those 23 were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

A Shockingly Clear Case for Reform

2011-11-11T14:59:00.001-05:00

Last night in Washington, the conservative Federalist Society held a black-tie fundraising dinner with featured speakers Antonin Scalia and Clarence Thomas.

The New York Times took note:

If they were mere federal judges they could not have accepted the invitation, because Canon 4(C) of the Code of Conduct for United States Judges prohibits personal participation in fundraising activities. It states that judges should not “solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

It’s an excellent rule and it would apply to the Federalist Society’s $175 a plate, sold-out dinner, which is clearly a fundraiser, with Justices Scalia and Thomas the star attractions in the black-tie optional event billed as “A Celebration of Service.”

The problem is that Supreme Court justices are not bound by Canon 4(C).

There's nothing stopping the Court from voluntarily adopting the same Code of Conduct that binds every other federal court, and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

An average of 184 days

2011-11-11T10:19:00.000-05:00

** UPDATE: THIS ACTION ALERT IS NO LONGER ACTIVE **

With each passing day, America's judicial vacancy crisis grows worse.

There are currently 23 nominees awaiting final votes in the Senate. They've had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee -- most without any opposition at all.

Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered "judicial emergencies" -- and Droney's nomination to the Second Circuit has been pending nearly 200 days.

It's time for the Senate to do its job and hold votes on these 23 nominees. Send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.

Here are the shocking figures:

23 pending nominees
21 with very strong bipartisan support
19 unopposed in committee
8 to fill judicial emergencies
And if votes were held today, the nominees' average wait time would be 184 days

Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama's first term lower than for any president in modern history.

Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid -- tell them to end the backlog and call for a vote on all pending nominees!

GPS Surveillance and the Fourth Amendment: Thoughts on United States v. Jones

2011-11-09T13:48:00.000-05:00

Guest post by Daniel Solove

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant. Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment. The D.C. Circuit agreed with Jones.

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car. The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because there, the Supreme Court noted that the surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   As the Court in Knotts stated that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

The Supreme Court will determine if it agrees with this theory.   The Court has long held that there is no expectation of privacy in public. This view has been frequently criticized as failing to recognize that people enjoy much practical obscurity in public and pervasive monitoring will dramatically undermine this obscurity. Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?

If the Court were to conclude that the Fourth Amendment required a warrant for GPS surveillance, it would have to define a coherent line between when a person in public has an expectation of privacy and when a person lacks such an expectation. Such a line would be challenging to draw.

If extreme enough, quantitative differences can become qualitative differences. But how does one articulate this into a workable approach in the law that isn’t too vague and mushy?

I was speaking with Peter Swire recently, who said that in order to convince the Court to draw such a line, it would be helpful for scholars to propose a workable test or approach for the Court to use. I think he’s right. So here’s my stab at it.

The Fourth Amendment applies to a surveillance technology used in public if the surveillance technology: (1) extends significantly beyond human capabilities; and (2) is used in a manner beyond its ordinary use by the general public.

Let’s see how this might work with a few examples:

1. Flashlight. A flashlight provides illumination where ordinarily humans might not be able to see. But its ordinary or intended use is to allow people to see things in the dark, so it wouldn’t be covered by the Fourth Amendment.

2. Thermal Sensors as Used in Kyllo. The use of thermal sensors to detect heat patterns in the home would be regulated by the Fourth Amendment. My approach would create a more sensible rationale than that used in Kyllo v. United States, 533 U.S. 27 (2001) (whether the technology is in general public use). Thermal sensors are in general public use, but they are not ordinarily used to spy into people’s homes.

Applying this approach to GPS, the technology can track people much more pervasively than regular stakeouts or following them around.   It thus extends significantly beyond human capabilities. The general public does not use GPS as a way to track people’s movements.   They use it as a way to find places and navigate while driving. Therefore, the police use of GPS to place a person under surveillance would be covered by the Fourth Amendment. Knotts could be distinguished because the beeeper wasn’t as pervasive and thus could be argued not to have extended significantly beyond human capabilities.

I don’t agree with the reasonable expectation of privacy approach to the Fourth Amendment, but if the Court is going to stick with this approach and try to fit GPS surveillance within its existing caselaw, then the above test will hopefully be consistent enough with the Court’s caselaw and more coherent than the tests previously articulated by the Court.

This post originally appeared on Concurring Opinions.

Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School. He is also a Senior Policy Advisor at the law firm Hogan Lovells. Additionally, he is the founder of TeachPrivacy, a company that helps schools with privacy issues. An internationally-known expert in privacy law, Solove is the author of several books, including most recently Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).

Corporate Court hears argument in food safety and railroad safety cases

2011-11-08T16:18:00.000-05:00

Tomorrow the Supreme Court will hear argument in two cases in which corporate defendants are attempting to avoid liability by arguing that state safety laws are preempted by federal law. At stake in Kurns v. Railroad Friction Products Corp. is the ability of individuals to hold railroad manufacturers responsible for violating state safety regulations that are more protective than federal safety standards. At stake in National Meat Association v. Harris is the ability of states to enact laws designed to protect the food supply when federal regulations do not provide that protection.

In Kurns, the daughter of a deceased railroad worker is suing railroad parts manufacturers on behalf of her father who died as a result of contracting malignant mesolthelioma, the only generally accepted cause of which is asbestos exposure. Defendants admittedly manufactured products which contained asbestos and failed to provide specific product warnings which are required under state law. Federal railroad regulations are silent as to warnings for products containing asbestos. Defendants claim that federal railroad regulations control the entire field of regulation with regard to railroad parts manufacture and use, and therefore any state law which imposes additional requirements is preempted.

The District Court and Court of Appeals in the Third Circuit both granted defendants summary judgment on the theory of implied field preemption, holding that the Locomotive Inspection Act (“LIA”) is the controlling law in the field of railroad safety regulations and effectively preempts any product liability claims based in state law.

However, states have historically shared the responsibility for railroad regulation and the Federal Railway Safety Act, in fact, allows states to continue in force any regulation relating to railroad safety until a federal law is enacted which concerns the same issue. Here, the LIA is silent as to product warnings for those products containing asbestos. Therefore, the state regulation which relates to this issue should be enforceable.

If the Supreme Court upholds the lower courts’ decision in favor of the defendants it will prevent injured citizens from holding railroad manufacturers responsible for violating state safety regulations, many of which speak to local safety hazards and provide more stringent protections which are not afforded by federal laws.

In National Meat, a trade association is suing to enjoin a California state law passed in response to shocking footage recorded in a slaughterhouse.

In January 2008, the Humane Society released undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been processed and sold, leading to the largest beef product recall in United States history.

The California State Legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized.

The National Meat Association (the “Association”) sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”). The FMIA was enacted to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. It sets forth inspection and examination requirements for animals that are intended to be slaughtered for human consumption, including downer animals. The Association argues that provisions of the California law that address slaughterhouse “operations,” are “within the scope” of the FMIA, but “in addition to, or different than” FMIA requirements, and therefore are preempted by the FMIA.

California argues that the state law disqualifies downer animals from being slaughtered for the purpose of human food production. Because downer animals effectively never become part of the slaughterhouse “operations” of human food production, the law is not preempted by the FMIA, which only regulates the processing of animals that are destined for human consumption.

The district court granted the Association’s motion for a preliminary injunction, finding that the California law was preempted by the FMIA, both expressly and by implication. The Court of Appeals for the Ninth Circuit reversed.

If the Supreme Court rules against California, states will be severely constrained in their ability to protect their residents from the dangers of a contaminated food supply.

These two cases have the potential to be additional examples of the Corporate Court using federal preemption to protect corporate interests and prevent states from protecting public safety.

Senate Confirms Wallach to the Federal Circuit

2011-11-08T16:00:00.000-05:00

Today, the Senate confirmed Evan J. Wallach to the United States Federal Circuit Court of Appeals by a bipartisan vote of 99-0. President Obama nominated Wallach to the seat on July 28, 2011; on October 6 he was reported out of the Senate Judiciary Committee by a unanimous voice vote.

Wallach's confirmation is an example of how timely the confirmation process can be when reflexive obstruction is set aside; the Senate took action on Judge Wallach’s nomination just 34 days after his name reached the floor.

The Senate’s action leaves 24 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit our Judicial Selection page.

Supreme Court takes another look at New Orleans DA’s repeated Brady violations

2011-11-08T13:11:00.002-05:00

Today the Supreme Court hears argument in the case of Smith v. Cain, yet another case in which the Orleans Parish District Attorneys’ Office committed egregious Brady violations by failing to disclose exculpatory and impeachment evidence to the defense.

This case follows closely on the Court’s controversial, 5-4 decision in Connick v. Thompson, delivered in March of this year. In Thompson, a narrow majority of the Court exonerated Harry Connick, the former Orleans Parish District Attorney, of liability for failing to train prosecutors who worked in his office regarding their obligation to disclose exculpatory evidence to defendants. The Court reversed a jury’s $14 million damages verdict for Thompson, whose murder conviction was overturned after 14 years on death row when withheld evidence was discovered by a defense investigator a month before his scheduled execution. The Court concluded that the D.A. did not have notice of the need for additional Brady training, distinguishing four other Orleans Parish convictions that were reversed in the 10 years prior to Thompson’s trial because they represented a different “sort” of Brady violation. This conclusion was particularly stunning because the Court had previously admonished Connick’s office in the 1995 case of Kyles v. Whitley for its Brady violations, instructing it to “err on the side of disclosure in order to avoid Brady violations.” Even Connick’s successor, Eddie Jack Jordan, Jr., stated upon assuming office in 2003 that “the former administration had a policy of keeping as much information as possible from the defense attorney.”

Smith v. Cain presents yet another shocking fact pattern, in which multiple pieces of exculpatory evidence were withheld by Connick’s office in a man’s trial on five murder charges. As the petition for cert pointed out, since 1981, there have been seven cases in which Louisiana death-row inmates have been exonerated, four of the seven were prosecuted in Orleans Parish, and all four involved “serious Brady violations.” Additionally, the Assistant District Attorney who prosecuted Smith had been sanctioned by the Louisiana Supreme Court for Brady violations in an earlier murder case.

The Supreme Court has an opportunity in this case to rectify its mistakes in Thompson. But if the Court finds for respondent, it will further erode the due process rights of criminal defendants as established nearly fifty years ago in Brady v. Maryland.

Supreme Court to Hear Argument in GPS Tracking Case

2011-11-07T14:29:00.004-05:00

Tomorrow the Supreme Court will hear argument in the case of United States v. Jones. At stake is the right of individuals to be free from warrantless government tracking of their vehicle’s location through GPS technology.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones’s vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones’s car while it was located in Maryland and tracked Mr. Jones’s car for a month, in contravention of the warrant. The device recorded Jones’s vehicles movements continuously, 24-hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The last relevant Supreme Court case, United States v. Knotts, allowed the use of beepers that send a signal to the police from a suspect’s vehicle for several hours only. The use of GPS devices for round-the-clock surveillance over a much longer period of time raises much greater concerns.

If the Supreme Court finds for the government in this case, it could pave the way for the use of technologically advanced tracking of individuals in ways that increasingly invade an individual’s private life.

What's standing in the way of reform?

2011-11-03T14:29:00.000-04:00

The Code of Conduct for U.S. Judges lays out ethical guidelines to protect the integrity of our judicial system, and its rules bind every federal judge... except nine. Can you guess which?

That's right... the Code of Conduct for U.S. Judges applies to every federal judge except the nine justices of the Supreme Court.

As Slate.com Senior Editor Dahlia Lithwick put it in AFJ's latest film, "When you tell people that the Code of Conduct applies to everyone but Supreme Court justices, they think it's a joke. That's how preposterous it is."

But we can change that, right now. Sign our petition and send a message to Chief Justice John Roberts and let him know that it's time for every Supreme Court justice to follow the same rules that govern every other federal judge in America.

Several Supreme Court justices have recently made headlines by engaging in behavior that likely would not be permitted if they sat on lower courts.

Justice Alito has headlined fundraisers for right-wing groups such as the American Spectator magazine.
Justices Scalia and Thomas attended political strategy and fundraising conferences hosted by the ultra-conservative billionaire Koch brothers. The justices have also allowed their names to be used to draw attendees.
Justice Thomas maintains a relationship with conservative funder Harlan Crow that stretches the appearance of unethical behavior beyond the breaking point.

There's nothing stopping the Court from voluntarily adopting the Code of Conduct and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

Click here to send a message to John Roberts. Tell him that the Court could voluntarily adopt the Code of Conduct RIGHT NOW and put these fears to rest by preserving the integrity of our nation's highest legal institution.

Reform can happen. The same Code of Conduct that's good enough for every other federal judge is good enough for the nine justices of the Supreme Court. Take action today and make sure that Chief Justice Roberts understands that his Court faces a question of integrity... and that his answer can protect the Court from harmful poltical influence.

Supreme Court to hear case on federal preemption of state food safety laws

2011-11-03T12:15:00.002-04:00

On November 9, the Supreme Court will hear argument in National Meat Association v. Harris. At stake is whether a state may enact laws designed to protect the food supply when federal regulations do not address the specific issue.

In January 2008, the Humane Society released an undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been processed and sold, leading to the largest beef product recall in United States history.

The California state legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized.

The National Meat Association (the “Association”) sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”). The FMIA was enacted to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. It sets forth inspection and examination requirements for animals that are intended to be slaughtered for human consumption, including downer animals. The Association argues that provisions of the California law that address slaughterhouse “operations,” are “within the scope” of the FMIA, but “in addition to, or different than” FMIA requirements, and therefore are preempted by the FMIA.

California argues that the state law disqualifies downer animals from being slaughtered for the purpose of human food production. Because downer animals effectively never become part of the slaughterhouse “operations” of human food production, the law is not preempted by the FMIA, which only regulates the processing of animals that are destined for human consumption.

The district court granted the Association’s motion for a preliminary injunction, finding that the California law was preempted by the FMIA, both expressly and by implication. The Court of Appeals for the Ninth Circuit reversed.

If the Supreme Court rules against California, states will be severely constrained in their ability to protect their residents from the dangers of a contaminated food supply.

Judiciary Committee Reports Five Judicial Nominees to the Floor

2011-11-03T11:18:00.003-04:00

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor. Four nominees were reported on a unanimous voice vote: Stephanie Dawn Thacker, Michael Walker Fitzgerald, Ronnie Abrams, and Rudolph Contreras, nominees to the Fourth Circuit, the Central District of California, the Southern District of New York, and the District of Columbia, respectively.

Miranda Du, nominee to the District of Nevada, was reported out on a 10-8 party-line vote.

Fitzgerald and Du have been appointed to vacant seats that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.

The committee also held over until its next meeting a vote on Susie Morgan, nominee to the Eastern District of Louisiana.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

Hearing for Three Nominees

2011-11-02T12:45:00.004-04:00

The Senate Judiciary Committee today held a hearing on the nomination of Judge Jacqueline Nguyen to the United States Ninth Circuit Court of Appeals. Nguyen was nominated to the Ninth Circuit by President Obama on September 22, 2011; she was appointed to her current seat on the U.S. District Court for the Central District of California by President Obama in July 2009, taking her place on the bench in December of that year when the Senate confirmed her with a unanimous vote of 97-0. Judge Nguyen, who was born in Dalat, Vietnam in 1965 and fled that country at the age of nine during the fall of Saigon, is the first Vietnamese American to serve on the federal bench. If confirmed to the Ninth Circuit, she will be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.

Hearings were also held for Gregg Jeffrey Costa and David Campos Guaderrama, to be United States District Judges for the Southern District and the Western District of Texas, respectively.

All three seats are open due to vacancies that have been designated judicial emergencies by the Administrative Office of the U.S. Courts. The seat to which Nguyen is nominated has been vacant for 1,016 days since its creation on January 21, 2009. Costa and Guaderrama are being considered for seats vacant for hundreds of days--Costa’s for 510 days, Guaderrama’s for 980—since the prior occupants took senior status.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

A Question of Integrity Premieres in Washington

2011-11-02T11:27:00.000-04:00

Last night in Washington, Alliance for Justice premiered our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices, and explores the need the need to apply the same ethical standards that govern every other judge in the federal court system to the nation's highest court. Viewers are called to action in support of reforms essential to preserve the integrity of our most important legal institution.

The film played to a full room at Washington’s historic E Street Cinema, and was followed by a lively question-and-answer session with Slate Senior Editor Dahlia Lithwick and American University Fellow in Law and Government William Yeomans. (Due to severe weather in the northeast, Congressman Chris Murphy of Connecticut was unable to attend.)

Lithwick and Yeomans took questions from the audience on the film, on questions of recusal surrounding the upcoming health-care case, and on why the issue of judicial ethics matters so much. Several attendees asked whether or not Congressional action on judicial ethics could raise serious separation of powers issues. Yeomans pointed out that the current recusal statute (which does apply to the Supreme Court, though individual justices are the sole determiners of whether or not it applies in each case) was established by Congress, and Lithwick pointed out that the justices could sidestep that point entirely by voluntarily adopting the same Code of Conduct that already applies to every other federal judge.

Alliance for Justice is leading an effort to reform the Court’s ethics rules. To learn more, watch A Question of Integrity online, or click here for more information on judicial ethics.

Premiere events in San Francisco and New York City will be held November and early December. To host a screening in your community, click here.

Supreme Court Hears Case On Constitutional Rights in Outsourced Prisons

2011-11-01T13:08:00.002-04:00

Today the Supreme Court will hear oral argument in Minneci v. Pollard, a case about whether employees of a private corporation operating a federal prison may be held liable under federal law for committing constitutional violations. Petitioners are asking the Court to reverse the Ninth Circuit’s holding that claims may be asserted against the employees of privately-run federal prisons.

Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.

Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.

The district court rejected Pollard’s claims against the corporation, based upon the Supreme Court’s 2001 holding in Correction Services Corp. v. Malesko that private prison corporations cannot be sued under Bivens. The district court also dismissed Pollard’s claims against the individual employees on the grounds that they were not acting in any official capacity when Pollard was injured, and that Pollard had the alternative remedy of suing for damages under California law.

The Court of Appeals for the Ninth Circuit reversed the district court’s decision as to the individual employees, ruling that the corporate employees were acting officially because they were carrying out a “fundamentally governmental function.” (The circuit court affirmed the district court’s ruling that the corporation itself could not be sued under Malesko). The Ninth Circuit held that the inquiry under Bivens is whether an alternative federal remedy is available; where the only alternative remedy is under state law, a Bivens action may be maintained.

The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In 2009, approximately 16% of the federal prison population resided in privately-run facilities. Additionally, nearly half of federal immigration detainees are held in privately-run detention facilities.

Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate than federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet petitioners seek to limit the ability of inmates to seek recompense when they suffer as a result of these dangers.

If the Supreme Court rules in favor of the corporate employees, inmates who are held in privately-run federal prisons will be unable to sue under federal law when their constitutional rights are violated by their jailers.

Senate Confirms Higginson to the Fifth Circuit

2011-11-01T09:48:00.003-04:00

The Senate has confirmed Stephen A. Higginson to the United States Fifth Circuit Court of Appeals by a bipartisan vote of 88-0.

President Obama nominated Higginson to the seat on May 9, 2011; on July 14 he was reported out of the Senate Judiciary Committee by a unanimous voice vote and has been waiting 109 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

Wal-Mart Sex Discrimination Case Enters New Stage

2011-10-27T16:03:00.002-04:00

Although the Supreme Court in June ruled against plaintiffs who sued Wal-Mart for sex-based employment discrimination, those plaintiffs today filed an amended lawsuit narrowing the class from all of the women who work or have worked at Wal-Mart and Sam’s Club stores (an estimated 1.5 million), to those in the retailer’s California regions (an estimated 45,000 current employees and 45,000 former employees).

In its June decision, which split 5-4, the Supreme Court did not decide whether or not Wal-Mart had discriminated, but rather held only that the plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and advancement.

A Question of Integrity

2011-10-25T16:19:00.001-04:00

Alliance for Justice is proud to release our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices and explores the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court.

Watch now:

Senate Judiciary Committee Hearing for Morgan

2011-10-19T18:38:00.000-04:00

The Senate Judiciary Committee today held a hearing on the nomination of Susie Morgan to the United States District Court for the Eastern District of Louisiana. Senator Chris Coons (D-DE) presided over the hearing; also in attendance were ranking member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT). Morgan was nominated by President Obama on June 7, 2011 and has waited 135 days to have her hearing before the Committee.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

Three Nominees Confirmed; 23 Left Waiting

2011-10-19T13:18:00.002-04:00

The Senate voted to confirm three nominees to U.S. District Court seats today. Mark Raymond Hornak and Robert N. Scola, Jr. were confirmed by unanimous consent to seats in the Western District of Pennsylvania and the Southern District of Florida, respectively. Robert David Mariani was confirmed by a bipartisan vote of 82-17 to a seat in the Middle District of Pennsylvania.

Mariani, nominated on Dec. 1, 2010, has waited 323 days to be confirmed to fill his seat which has been declared a judicial emergency by the Administrative Office of the U.S. Courts. It has been 91 days since he was reported out of the Senate Judiciary Committee without opposition on July 21. Scola is also filling a judicial emergency vacancy; it has been 169 days since his nomination on May 4, 2011. Hornak, like Mariani, has waited 323 days for his unanimous confirmation by the Senate.

For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.

Senate Confirms Bissoon to the District Court

2011-10-17T18:53:00.000-04:00

Today, the Senate confirmed Catherine Bissoon to the United States District Court for the Western District of Pennsylvania by a bipartisan vote of 82-3. President Obama nominated Bissoon to the seat on November 17, 2010. It has been 335 days from her nomination to her confirmation by an overwhelming majority of senators.

The Senate took no action on 26 other judicial nominees currently pending on the Senate floor, 25 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts.

For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.

Corporate Court Grants Cert. in Human Rights Cases

2011-10-17T17:47:00.001-04:00

The United States Supreme Court today granted cert. in two cases that affect the rights of individuals seeking to hold corporations and other organizations responsible for human rights violations.

In Kiobel v. Royal Dutch Petroleum, twelve Nigerian nationals sued Royal Dutch Petroleum and two other oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of Nigeria in the early 1990s. To protest the environmental damage caused by the defendants' oil exploration and production in the Ogoni region, Nigerian residents organized the “Movement for Survival of Ogoni People.” Plaintiffs allege that defendants then enlisted the Nigerian government to suppress the Ogoni activists.

In 1993 and 1994, the Nigerian military was involved in a variety of human rights abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and looting property – allegedly with the assistance of defendants.

To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their claims under the Alien Tort Statute (ATS), alleging that defendants had aided and abetted the Nigerian government in violating the law of nations, including extrajudicial killing, crimes against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, property destruction, and violation of the rights to life, liberty, security, and association.

The District Court dismissed some of the plaintiffs’ claims, finding that they were not established clearly enough under customary international law, while permitting the remainder to proceed. Both parties appealed the court’s ruling. Rather than decide the issues that had been certified for appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all claims by finding that corporations are not liable under the ATS.

The Alien Tort Statute, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.” Considering the limited jurisdiction of the ATS, the Second Circuit majority concluded that, while states and individual men and women have been held liable for human rights violations, corporations have not. The majority acknowledged that corporations are generally considered by U.S. courts to be “persons,” with corresponding rights and liabilities. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

As Judge Pierre Leval, who concurred only in the judgment, stated in a separate opinion, the majority “deal[t] a substantial blow to international law and its undertaking to protect fundamental human rights” by creating a rule “[w]ithout any support in either the precedents or the scholarship of international law. In Judge Leval's view, the majority was wrong to derive a lack of precedent for the civil compensatory liability of corporations based on the lack of jurisdiction for international criminal tribunals.

Furthermore, the court deemed the matter a jurisdictional question, which the court may address on its own at any point, rather a question of the merits of the case, which is waived if not raised by the defendants. The Second Circuit’s holding created a split among the circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party. The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits.

The Supreme Court will also hear argument in the related case of Mohamad v. Rajoun. In that case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (TVPA). The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations. If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity.

Protesters Arrested at the Corporate Court

2011-10-17T15:45:00.007-04:00

Protesting the corrupting influence of corporate money in government, 19 people, including Princeton University professor Cornel West, were arrested on the steps of the United States Supreme Court on Sunday.

After attending the morning dedication of the new Martin Luther King, Jr. Memorial on the National Mall, some 250 protestors marched from Freedom Plaza to the Court. Speaking to those gathered, many of whom were carrying signs that read “Human Need Not Corporate Greed,” West declared, “We want to bear witness today that we know the relation between corporate greed and what goes on too often in the Supreme Court decisions.”

The protesters were part of the October2011: Stop the Machine movement that has been occupying Freedom Plaza since October 6. Stop the Machine, like the Occupy DC and Occupy Wall Street movements, has been protesting the ways in which large sums of money from corporate interests are skewing politics and the economy to favor the wealthiest one percent of the population at the expense of the interests and well-being of the other ninety-nine percent of the population.

An example of Supreme Court decisions being denounced by the protesters is the 2010 Citizens United v. FEC ruling that allowed corporations to spend unlimited amounts of money on advertising to support or attack candidates in elections. One of the October2011 organizers, Kevin Zeese, said: "It is a fitting tribute to Dr. Martin Luther King, Jr. for Dr. West and the others to risk arrest protesting the unfair wealth divide and the Supreme Court empowering money over voters. In the battle for a real, participatory democracy getting money out of politics is a critical step." One protestor held a sign reading, “I can’t afford my own politician so I made this sign”; another read “No $$, No Voice.”

Alliance for Justice has been active in tracking and reporting on the Court’s numerous decisions in favor of big-money special interests through its Corporate Court campaign. To learn more about the Corporate Court, including past rulings and upcoming cases, see Alliance for Justice’s Corporate Court: Open For Business webpages.

Arbitration: Is It Fair When Forced?

2011-10-14T15:18:00.000-04:00

“Arbitration: Is It Fair When Forced?” was the subject of a Senate Judiciary Committee hearing held on Thursday, Oct. 13.

Sen. Al Franken (D-MN), sponsor of the Arbitration Fairness Act (S. 987) focused his questions and comments on the ways in which mandatory arbitration clauses put everyday Americans at a disadvantage in seeking justice against large corporations. Mandatory arbitration clauses, often embedded deep in the fine print of a contract, compel parties to give up their right to sue in court when they have a dispute. Instead of going before a judge and a jury, people who sign those contracts -- such as cell phone or employment contracts -- to appear before privately hired arbitrators... who are often hired by the corporation.

Among witnesses testifying was Dr. Deborah Pierce, a physician specializing in emergency medicine. Dr. Pierce described the forced arbitration process she underwent when she brought a claim against her employer for gender-based employment discrimination. Because an arbitration clause was a mandatory part of her employment contract, Dr. Pierce was barred from bringing her complaint in a court of law; instead, she was forced to take part in an arbitration process that was skewed in favor of her employer, who had a prior relationship with the organization appointing the arbitrator. Dr. Pierce was required to pay over $200,000 in arbitration costs, including half of the $450/hour fee charged by the arbitrator. People of lesser means simply would not have been able to afford to arbitrate their claims at all. When Dr. Pierce lost her case and argued that the arbitrator did not correctly apply the law to her case, the organization supplying the arbitrator responded that it “does not certify or attest to the abilities, competence, or performance of its arbitrators, and that it does not make any ‘warranties about the ability of the arbitrator to weigh facts and law.’”

Witnesses opposing the Arbitration Fairness Act attempted to argue that forced arbitration was beneficial to ordinary people, claiming that without it companies might not be willing to offer services like credit cards at all.

Questioning Victor Schwartz, a lawyer representing the U.S. Chamber of Commerce, Sen. Franken asked whether he thought it was fair to have people sign contracts with hidden mandatory arbitration clauses. The Chamber lawyer simply replied “fairness is in the eyes of the beholder,” and other witnesses argued that people wishing to avoid mandatory arbitration could simply avoid opening bank accounts, buying mobile phones, or engaging in any activity that involves signing contracts. Under further questioning by Sen. Franken and Sen. Richard Blumenthal (D-CT), they were forced to concede that it was nearly impossible, in the 21st century to avoid the clauses which appear in the vast majority of credit card contracts, car financing arrangements, cell phone contracts, nursing home residency agreements, and in almost every agreement to purchase a good or service online.

Sen. Sheldon Whitehouse (D-RI), pointed out that the right to a court trial was a right held to be essential to the working of our American democracy by the Founders—so much so that a system to provide for courts of law and the right to a trial by jury in certain situations are written into the Constitution. He described the situation posed by mandatory arbitration clauses as one in which citizens are unknowingly forced to sign away their rights to a fundamental freedom guaranteed in the Constitution, and wondered if the opinions of some of his colleagues about such clauses might be different if, within the fine print of a contract, people were forced to agree to give up their 2nd Amendment right to bear arms.

The Arbitration Fairness Act, introduced by Senator Franken and co-sponsored by Senators Blumenthal, Whitehouse, and others, would amend the Federal Arbitration Act to state that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, or civil rights dispute.” This act would return arbitration to its original intent under the law—as a process into which parties of equal power and standing could voluntarily choose to enter when a dispute arose and they both wanted to seek an alternative to litigation. Alliance for Justice is one of many organizations that signed a letter to the Senate Judiciary Committee supporting the Arbitration Fairness Act.

To learn more about the dangers of mandatory arbitration and the ways in which recent decisions by the Supreme Court to uphold forced arbitration clauses are benefiting corporations in evading justice when they violate the rights of ordinary people, download Alliance for Justice’s new report, Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System.

Senate Confirms Three District Court Nominees

2011-10-13T17:05:00.000-04:00

Today, the Senate confirmed Alison Nathan to the United States District Court for the Southern District of New York by a vote of 48-44; Susan O. Hickey to the United States District Court for the Western District of Arkansas by a bipartisan vote of 83-8; and Katherine B. Forrest to the United States District Court for the Southern District of New York by a unanimous voice vote.

The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are now 107 current and future vacancies in the federal judiciary—1 in 8 judgeships— and only 7 fewer than there were at the beginning of the current Congress.

With the confirmation of Alison Nathan, the number of life-tenured openly gay federal judges has increased to three; two of these were appointed by President Obama and one by President Clinton.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance’s Judicial Selection webpage.

Thirty Nominees Awaiting Final Senate Votes

2011-10-13T11:29:00.001-04:00

Today the Senate Judiciary Committee voted five judicial nominees out of committee, moving them forward to the full Senate for confirmation, bringing the total number of nominees awaiting floor votes to 30.

Adalberto José Jordán, nominee to be United States Circuit Judge for the Eleventh Circuit, and three United States District Court nominees: Mary Elizabeth Phillips to the Western District of Missouri, Thomas Owen Rice to the Eastern District of Washington, and David Nuffer to the District of Utah were reported out on a unanimous, en banc voice vote. John M. Gerrard to the District of Nebraska, was reported out on a bipartisan voice vote, with only one senator voting no.

Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Currently there are 32 judicial emergency vacancies, with 20 persons nominated to fill the seats.

Responding to the strain being placed on our justice system by the lack of judges in the courts, the Committee also reported out S.1014, the Emergency Judicial Relief Act on a vote of 15-3, with Senators Grassley (R-IA), Sessions (R-AL), and Coburn (R-OK) voting no. The bill would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.

Holding swift votes on the 30 nominees pending on the Senate floor, all but 1 of whom came out of Committee with little or token opposition, is one way the Senate can take direct, immediate action to ease the burden on our judiciary and ensure that the American people have access to justice.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

Florence v. Board of Chosen Freeholders: Stripping Away Privacy Rights?

2011-10-12T16:56:00.001-04:00

Today, the Court heard oral arguments for Florence v. Board of Chosen Freeholders, a case involving the blanket strip search policy of corrections facilities in New Jersey. The question before the Court is whether individuals’ Fourth Amendment right against unreasonable searches is violated when, upon arrest and placement in a county jail for even minor offenses, they are subjected to a visual body cavity search in the absence of reasonable suspicion that they carry contraband.

Albert Florence and his family were stopped by a state trooper for a traffic violation in Burlington County, New Jersey. After running Florence’s tags, the trooper arrested him for non-payment of a court fine, even though Florence carried proof of payment of that fine in his car for just such a situation. At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search, including a visual body cavity search, by the corrections officers.

Florence and other people arrested for minor offenses, such as traffic arrests for running a stop sign or having a broken headlight, brought a class action lawsuit against the corrections facilities and county officials. The district court found that the officials violated Florence’s Fourth Amendment right against unreasonable searches. The Third Circuit Court of Appeals reversed, holding that the facilities’ security interest in preventing the smuggling of contraband outweighs the privacy interests of detainees.

During argument today, the justices focused on when a suspicionless search would be reasonable and whether body cavity searches were significantly more intrusive than simple visual searches. Justice Kennedy thought that the blanket search policy might be valid because, in his own experience, county jails are more dangerous than state penitentiaries. Justice Scalia questioned whether it made sense to draw the line for visual cavity searches at the point where it would be allowed for felony arrests but not arrests for minor offenses.

However, when the counties’ attorney suggested that reasonable suspicion was not required for a body cavity search, he received push back from some justices. Justice Sotomayor said that the requirement of reasonable suspicion for cavity searches, which has been adopted in virtually every circuit, has been fairly successful, and she questioned the advisability of changing the rule to allow jails to further invade individual privacy. Sotomayor further observed that contraband generally comes into correction facilities through contact visits and corrupt guards, rather than through intake. Justice Kagan observed that for “somebody who is arrested on the spot, there is no opportunity for planning, for conspiracy with respect to contraband.”

If the Supreme Court allows this blanket body cavity search policy to stand, it will further erode Fourth Amendment protections against police searches.

Corporate Court grants cert. in home mortgage scam case

2011-10-12T16:46:00.001-04:00

In another case that pits everyday Americans against large corporation, the Supreme Court has granted cert. in the mortgage loans case Freeman v. Quicken Loans Inc. The case arises from a group of lawsuits out of Louisiana in which borrowers, including Tammy and Larry Freeman, claim that Quicken Loans violated the Real Estate Settlement Procedures Act (RESPA) by charging them loan-discount fees on their mortgages without providing reduced interest rates in return.

It is common practice for people taking out a home mortgage loan to pay “points,” which are based on a percentage of the overall loan amount. But the expectation is that the lender will reduce the borrower’s interest rate over the life of the loan. In this case, the Freemans secured a mortgage loan from Quicken and were charged $980 for a “loan discount fee” (the points), but Quicken did not provide the Freemans and other borrowers the discounted rate they paid for. Through such fraudulent practices, Quicken received hundreds or thousands of dollars in ill-gotten fees from each borrower.

The question for the Supreme Court is how to interpret RESPA, which prohibits kickbacks and other abuses in the mortgage industry. Here is the key language in the statute:

No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

The Freemans argue that the Act was intended to forbid unearned fees, regardless of whether a third party was involved in the improper fee arrangement. Quicken argues that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party in the form of a kickback. The Fifth Circuit agreed with Quicken, ruling that there was no violation of the Act if an unearned fee is charged by a single party and there is no third party taking a share.

The Circuit Courts are divided on this issue, with the Fourth, Fifth, Seventh and Eight Circuits limiting the Act to third party kickbacks and the Second, Third and Eleventh Circuits believing that the Act applies to all unearned fees. The Department of Housing and Urban Development supports the interpretation that the statute should apply to all unearned fees. The Solicitor General has filed a brief supporting the Freeman’s petition for certiorari.

This is the second RESPA case on the Corporate Court’s docket this year. The other case is First American Financial Corp. v. Edwards, which threatens to undermine a host of laws that protect consumers by awarding damages when corporations violate them.

If the Court sides with Quicken, it will allow mortgage lenders to cheat homebuyers out of hundreds or thousands of dollars without giving them anything in return.

Medical-Malpractice Narrative Undercut by Simple Reality

2011-10-12T08:18:00.000-04:00

Are "skyrocketing" medical malpractice insurance premiums making it impossible for health-care practitioners to keep delivering quality care to patients? That's the current narrative in support of so-called tort reform legislation, but an important article published in Medscape Today (subscription required) undercuts that narrative with simple facts.

Medical groups, including the AMA, have constructed this narrative as part of their push for a legislative "fix" for the so-called problem, and have recently asked the Congressional deficit "supercommittee" to include medical malpractice caps in any deficit-reduction proposal. They've been working to convince patients and politicians that insurance claims are driving up medical costs, and that Washington can rein in health-care costs by enacting a national cap on medical malpractice damage awards for patients who are injured as a result of their medical treatment.

The Medscape Today article notes that despite the rhetoric, medical malpractice insurance premiums have actually been declining.

Although there was a time when the insurance premiums were increasing, the article notes:

[I]n 2011, they declined for the fourth straight year for 3 representative medical specialties, according to a publication called Medical Liability Monitor (MLM). Its annual rate survey, highly regarded in the field, was published this week.

Rates for obstetrician/gynecologists, general internists, and general surgeons decreased on average by a miniscule 0.2% this year after a 0.5% decrease in 2010. Rate decreases of 2.5% in 2009 and 4% in 2008 were more substantial. . . .

[A] downward trend is a downward trend, even though it is leveling out, and another upward trend is not imminent, said Chad Karls, a consulting actuary from a company called Milliman, who edits the MLM rate survey.

"Rates will remain flat in the foreseeable future," Karls told Medscape Medical News.

Medscape acknowledges that it is possible that caps in some states may have contributed to the national decline of insurance rates, but points out that this possibility falls far short of the claims made by supporters of a national cap. Those supporters claim that statewide caps have:

[L]ed to fewer malpractice claims being filed, which in turn has lowered premiums — a pattern attested to by a number of academic articles. However, premiums also have decreased in states, such as Oregon, that do not cap noneconomic damages.

"So caps can't be the only reason," Karls said. "I think the push for patient safety and risk management also has played a role" in reducing claims and premiums.

The article notes that even the American Medical Association seems to acknowledge that the so-called “crisis” in premium rates is no longer a crisis, referring merely to “rising,” rather than “soaring” or “skyrocketing” costs of premiums in a recent letter to the Joint Select Committee on Deficit Reduction which urges the Committee to include medical malpractice caps and tort reform as part of its savings plan for the federal budget.

Alliance for Justice, along with twenty other consumer and patient-safety groups, sent an open letter to the deficit supercommittee refuting the claims of malpractice cap supporters. The letter urges the committee not to include caps in their plan, and lists the many ways in which such caps would actually increase government costs (for example, by making it difficult or impossible to recoup Medicare expenses lost to fraud) while severely compromising patient safety.

For more information on AFJ's efforts to ensure that patients don't lose their rights to seek justice in court, see our Civil Justice webpage.

Senate Confirms District Court Nominee

2011-10-11T22:02:00.005-04:00

This evening the Senate confirmed Jane Triche-Milazzo to the Eastern District of Louisiana on a vote of 98-0. Judge Milazzo was nominated on March 16^th, 2011. There are 25 other judicial nominees pending on the floor, all but one of whom were reported out of committee unanimously or with strong bipartisan support. Five more nominees are likely to be reported to the floor this Thursday.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s website.

CompuCredit v. Greenwood: Does a “Right to Sue” Really Mean a Right to Sue?

2011-10-11T18:08:00.002-04:00

This morning, the Supreme Court heard oral arguments in CompuCredit v. Greenwood, a case that will decide whether a federal law requiring that consumers be informed of their “right to sue” voids mandatory arbitration clauses in credit repair contracts.

Plaintiffs in this case are a class of consumers who sued CompuCredit for deceitful marketing tactics under the Credit Repair Organization Act (CROA). These consumers signed up for credit cards which CompuCredit claimed would help them rebuild their credit. Instead, credit card holders were charged $257 per year in undisclosed fees, plus interest, if the fees were not paid. The credit card agreement also included a mandatory arbitration clause which the consumers now claim is invalidated by the CROA.

The CROA requires that agreements between credit repair companies and consumers must contain the language: “You have the right to sue a credit repair organization that violates the Credit Repair Organization Act.” The consumer plaintiffs claim that this language voids the mandatory arbitration clause in CompuCredit’s contracts with them, thus giving them an actual, meaningful “right to sue.” CompuCredit argues that consumers must go to arbitration rather than bringing their lawsuit in court because the CROA requires only disclosure of a right to sue and not an actual right to sue. Both the federal district court and the Ninth Circuit Court of Appeals ruled in favor of the consumers, holding that the CROA voids the arbitration clause.

The argument today found the justices on both sides of the issue. Justice Ginsberg observed that the statute’s language requiring consumers to be notified of a right to sue must include an actual right to sue, as anyone who read the notice would believe. Likewise, Justice Kagan observed that the CROA “says you have a right to sue, and you [-- CompuCredits’ counsel --] are asking us essentially to read that language as: You have a right to bring a claim in court, but it's probably going to end up in arbitration because of the nature of your form contract.” Justice Scalia, on the other hand, was open to CompuCredit’s reading of the “right to sue” language as merely providing notice and not a substantive right because the language creating the requirement was not located in the substantive part of the statute.

This case comes to the Supreme Court at a time when consumers are increasingly being forced from the courts into mandatory arbitration. The Court’s recent cases involving arbitration agreements have held that they are enforceable under the Federal Arbitration Act.

Last term in AT&T v. Concepcion, the Court upheld a company’s right to include in its standard contract a waiver of the consumer’s right to sue or participate in a class action. This was devastating for consumers’ rights because an individual consumer will not have the resources or incentive to take on a corporation when they have been cheated out of a small amount of money and must find strength in numbers to bring such a lawsuit. If consumers are not allowed to band together as a group, corporations will not be held accountable for their deceptive or harmful practices. One of the few remaining exceptions to the rule in AT&T is where federal law provides an express right to sue.

This Thursday, Senators Al Franken and Richard Blumenthal will lead a Senate Judiciary Committee hearing entitled “Arbitration: Is It Fair When Forced?” to address the problems caused by the Supreme Court’s forced arbitration cases.

AFJ released a special report today highlighting how the Corporate Court has used the arbitration system to help businesses evade justice.

Former Judges Speak Out on Overmilitarizing Counterterrorism Efforts

2011-10-11T16:54:00.000-04:00

In an op-ed last Friday, three former federal judges criticized Congressional attempts to “overmilitarize” America’s counterterrorism efforts.

Former D.C. Circuit Court of Appeals Judge and AFJ Champion of Justice Honoree Abner Mikva, former District Court Judge for the Western District of Texas William Sessions, and former Third Circuit Court of Appeals Judge John Gibbons argue that legislation pending in Congress undermines the fundamental role of our nation’s courts by giving the power of “judge, jury and jailer” to the U.S. military.

The National Defense Authorization Act of 2012, which has passed the House and is awaiting a vote in the Senate, includes provisions that would codify the practice of indefinitely detaining terrorist suspects without charges. The bill would be applicable to anyone – even U.S. citizens – detained in anti-terrorist efforts anywhere in the world, including on U.S. soil.

The group of judges emphasized the fact that the criminal justice system, rather than military commissions, is best equipped to handle terrorism cases, and has the most experience doing so. While civilian courts have the benefit of hundreds of terrorism-related trials, military commissions, such as the one at Guantanamo Bay, have handled few such trials and are plagued by constitutional problems. The judges concluded by calling on President Obama and Congress “to support a policy for detention and trial of suspected terrorists that is consistent with our Constitution and maintains the use of our traditional criminal justice system to combat terrorism.”

In monitoring our government’s counterterrorism programs, AFJ has sought to ensure that our most cherished constitutional freedoms are not sacrificed, and that those who made the decision to condone torture are held to account. Click here to learn more about our work for torture accountability.

Obama Nominates Shwartz to the Third Circuit

2011-10-11T09:14:00.000-04:00

President Obama has nominated Judge Patty Shwartz to the United States Circuit Court of Appeals for the Third Circuit. Since 2003, she has served as a Magistrate Judge on the United States District Court for the District of New Jersey. She has taught as an adjunct professor of law at Fordham University School of Law since 2009.

Judge Shwartz graduated from Rutgers University in 1983 with highest honors and was named the Outstanding Woman Law Graduate of her class upon graduating from the University of Pennsylvania Law School in 1986. Her previous legal experience includes working as an associate at Pepper, Hamilton & Scheetz (now Pepper Hamilton LLP); serving as a law clerk to the Honorable Harold A. Ackerman of the United States District Court for the District of New Jersey from 1987 to 1989; and working in a variety of positions in the United States Attorney’s Office for the District of New Jersey from 1989-2002.

With this nomination, there are now 53 nominees pending for the 109 current and future vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Wallach, Four District Court Nominees Voted Out of Committee

2011-10-06T17:27:00.000-04:00

Today the Senate Judiciary Committee voted five judicial nominees out of committee in a unanimous, en banc vote, moving them forward to the full Senate for confirmation. The nominees are Evan Wallach, nominated to be a United States Circuit Judge for the Federal Circuit, and four United States District Judge nominees: Dana Christensen to the District of Montana, Cathy Bencivengo to the Southern District of California, Gina Marie Groh to the Northern District of West Virginia, and Margo Brodie to the Eastern District of New York. They now join 21 other pending nominees awaiting confirmation by the Senate.

Consideration of all five had been “held over” by Republicans at the last meeting of the Committee. Holding over nominees, even when there is no opposition to their appointment, has been a consistent tactic by Republican senators seeking to slow down the judicial confirmation process. This tactic was continued at the Committee today, with Republican ranking member Sen. Grassley (R-IA) automatically holding over the nominations of Adalberto José Jordán to the Eleventh Circuit Court of Appeals and District Judge nominees John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.

Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Also automatically held over was consideration of S.1014, Emergency Judicial Relief Act, a bipartisan bill that would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.

Rather than playing delaying games in an attempt to keep President Obama’s nominees off the bench, Republicans in the Senate should be moving with all speed to ensure that these vacancies are filled so that people seeking justice in the courts of our nation can be heard.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

Supreme Court Hears Oral Argument in Hosanna-Tabor v. EEOC

2011-10-06T17:16:00.000-04:00

Yesterday, the Supreme Court heard oral arguments in Hosanna-Tabor v. EEOC, a case over whether a disabilities discrimination claim can be brought against a religious school by a secular teacher.

Cheryl Perich was a teacher of primarily secular subject matter at Hosanna-Tabor Lutheran School. She had been certified in the past as a “called” teacher within her denomination, meaning she had undergone some training in religious doctrine. After she became ill and took medical leave, the school tried to get her to resign. When this failed, they expressed concern that Perich could not handle a classroom because of her disability.

When Perich threatened to sue the school for disability discrimination, the school fired her.

At issue in this case is whether Hosanna-Tabor was properly acting within the court-created “ministerial exception” to the Americans with Disabilities Act (ADA) when they fired Perich. Under the exception, which is intended to uphold the First Amendment guarantee of the separation of church and state, a religious institution is immune from discrimination suits if a fired employee had primarily religious duties. The ministerial exception is largely accepted in the lower courts but has not yet been addressed by the Supreme Court.

During yesterday’s argument, Justice Scalia was vocally in favor of the Church’s position, saying “It’s none of the business of the government to decide what the substantial interest of the church is.” However, other justices questioned whether Perich could be considered a ministerial employee who would be subject to the exception.

When the attorney arguing on behalf of Perich suggested that she was not a “minister” because she performed an important secular function, Chief Justice Roberts observed that under such logic the Pope, as a head of state in addition to being the head of the Roman Catholic Church, would be considered not a minister.

Justice Sotomayor expressed concern that allowing the exception to stand would keep teachers from reporting illegal conduct to the government, and asked the lawyer representing the church whether a church should be allowed to fire a teacher for reporting a sex abuse scandal.

If the Court sides with the church in this case, they will be condoning retaliation and discrimination against a teacher at a religious school for reasons unrelated to religious doctrine. Such a decision would insulate religious institutions from discriminating against employees with disabilities under the ADA.

Coverage of oral arguments can be found in the Washington Post and via Reuters. A transcript of the argument can be downloaded from the Supreme Court’s website.

Hearings on Five Nominees, Two to Fill Judicial Emergencies

2011-10-04T17:13:00.000-04:00

The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.

If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).

With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified nominees on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary May–August 2011: Judicial Nominations in the 112th Congress.

Senate Confirms Six Judicial Nominees

2011-10-04T08:56:00.001-04:00

Yesterday evening the Senate confirmed Henry F. Floyd to the Fourth Circuit Court of Appeals by a vote of 96-0. Judge Floyd was previously a United States District Judge for the District of South Carolina. The Senate also confirmed the following nominees to serve as District Court judges by unanimous consent: Nannette Jolivette Brown for the Eastern District of Louisiana; Nancy Torresen for the District of Maine; William Francis Kuntz, II for the Eastern District of New York; Marina Garcia Marmolejo for the Southern District of Texas; Jennifer Guerin Zipps for the District of Arizona.

Four of the six confirmed nominees—Floyd, Kuntz, Marolejo, and Zipps—are filling vacancies that have been designated judicial emergencies by the Administrative Office of the U.S Courts. Judge Zipps is filling the seat left vacant by the death of Judge John M. Roll in the shooting incident that severely injured Congresswoman Gabrielle Giffords (D-AZ). The other confirmed nominees filling judicial emergencies, all of whom faced no opposition, all waited over 200 days to take their seats on the bench. Judge Floyd waited 249 days, Judge Kuntz waited 209 days, and Judge Marmolejo waited an incredible 433 days to be confirmed.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Supreme Court Hears Oral Argument in Douglas v. Independent Living

2011-10-03T17:04:00.000-04:00

Today the Supreme Court heard oral arguments in Douglas v. Independent Living of Southern California, a case which could affect the ability of Americans to have their day in court.

In the Douglas case, a group of Medicaid beneficiaries and providers challenged California’s attempt to cut reimbursement rates in violation of federal law. The Supreme Court today heard arguments on whether these private plaintiffs can bring a suit against the state for violating federal law.

If the Court finds in favor of California, Medicaid recipients will have their benefits reduced and have a harder time getting care. It will also pave the way for states to gut other federally-funded public assistance programs.

In today’s arguments, the justices appeared split on the issue of whether private actors could bring such lawsuits. Chief Justice Roberts seemed inclined towards California’s argument, noting that the court does not generally allow private actors to sue unless a law expressly says they may. Justice Breyer said he was troubled by giving federal judges too much authority to weigh in on Medicaid payments because it could lead to courts preventing federal agencies from “doing their business.”

However, other justices seemed more inclined to side with the plaintiffs. Justice Ginsburg noted that there was no effective way to enforce the Medicaid Act without private plaintiffs. Justice Kagan censured California for putting the new rates in place before receiving federal approval in an attempt to do an “end run” around the regulatory process.

Last week, AFJ released a report on the Douglas Case and its potential impact on everyday Americans. You can download a PDF of the report here.

Coverage of the oral argument is available from the AP and from the LA Times. A transcript is available from the Supreme Court's website.

Indictment Requested Against Bush for Torture in Canada

2011-09-30T08:22:00.004-04:00

The Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) have submitted a 64-page letter to the Attorney General of Canada making the factual and legal case for indicting President George W. Bush for torture under the Canadian Criminal Code and the Convention Against Torture (CAT). The move comes in advance of Bush’s scheduled October 20 speech at the Surrey Regional Economic Summit in Surrey, British Columbia.

CCR and CCIJ are calling on Canada’s Attorney General to begin a criminal investigation of Bush for his administration’s creation and use of a systematized torture program -- a program, they note, that Bush himself has admitted to authorizing and which is supported by ample publicly available evidence. The organizations assert that Bush must be held accountable for actions he ordered and oversaw, including “enforced disappearance and secret detention, exposure to extreme temperatures, sleep deprivation, punching, kicking, isolation in ‘coffin’ cells for prolonged periods, threats of bad treatment, solitary confinement, and forced nudity” of detainees.”

Announcing this action, CCR Senior Staff Attorney Katherine Gallagher stated:

“George Bush has openly admitted that he approved the use of torture against men held in U.S. custody. . . . Despite this admission, no country has been willing to investigate and prosecute Bush’s criminal acts, leaving the victims of his torture policies without any justice or accountability. Canada is a signatory to the Convention Against Torture, and has an obligation to investigate Bush for his leadership role in the U.S. torture program. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. We urge Canada to put an end to impunity for Bush.”

CCIJ Legal Director Matt Eisenbrandt said:

“Canada has a strong legal framework and there is absolutely no ambiguity in our criminal code when it comes to committing or allowing torture. . . . There is grave evidence that former President Bush sanctioned and authorized acts of torture, not only in violation of Canadian laws, but also of international treaties that Canada has ratified. It is therefore clear that our government has both the jurisdiction and the obligation to prosecute Bush should he set foot again on Canadian territory.”

Noting that the United States has refused, so far, to live up to its obligation to hold torturers accountable for their actions under the CAT, CCR and CCIJ requested that Canada abide by its commitments as a signatory to the Convention and hold President Bush liable for his actions.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture. AFJ applauds and supports these groups’ efforts to achieve accountability for torture.

The document, along with over 4,000 pages of supporting materials, is available online. To learn more about accountability for torture, visit our webpage [http://www.afj.org/connect-with-the-issues/accountability-for-torture/]

Worst Decisions: A Tie for #1 - AT&T Mobility v. Concepcion

2011-09-30T08:15:00.002-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, we looked at one of the two worst, Wal-Mart v. Dukes, which allows corporations to discriminate as long as they do so on an enormous scale

In our tie for the #1 slot, this case has profound ramifications for the millions of Americans who have to sign contracts to get a job, or to buy a product or service.

Worst Decisions of the 2010-11 Corporate Court Term: #1 (tie) AT&T Mobility v. Concepcion
Giving Corporations a License to Steal

In a 5-4 vote, the Corporate Court majority enacted sweeping protections for corporate wrongdoers. Consumers could once band together to access justice in court when defrauded by corporations. After AT&T, each consumer will likely be forced to fight it out alone before a private arbitrator chosen by the company that cheated them. This divide-and-conquer strategy is favored by corporate scofflaws because they know isolated cases are often not worth bringing at all. A company may have reaped millions in ill-gotten gains, but what consumer would sue to regain damages like the $30.22 unlawfully charged to the Concepcións and other consumers in this case?

The majority achieved this radical result by transforming the 1925 Federal Arbitration
Act (FAA), which was enacted to protect arbitration among corporate equals, into one of big business’s most powerful shields against accountability. To activate the shield, corporate lawyers need only draft contracts that people must sign if they want to buy a product or service or get a job and which force consumers and employees into binding one-on-one arbitration when a dispute arises.

By re-writing an 86-year-old federal statute, five justices enabled AT&T to reap millions by advertising “free” cell phones to lure customers, unlawfully charging them a $30 sales tax, and hiding clauses in the service contract that forced consumers to waive their right to join a lawsuit with others defrauded in the same scheme.

California’s Supreme Court considered such adhesion contracts to be unconscionable, and struck them down. But where California judges saw injustice for consumers, the five conservative justices of the Corporate Court saw only burdens on corporate defendants. Corporations will now be able to decide on their own which civil rights and consumer protections they want to obey, knowing that there will be no effective means available to their victims to obtain redress.

AT&T v. Concepción is tied for number one on AFJ’s Worst Decisions of the 2010-11 Corporate Court Term because nearly every aspect of Americans’ everyday lives is controlled by contracts that individuals must sign to get a job, or buy a product or service. After AT&T, these “license to steal” clauses will almost certainly appear with greater frequency.

Worst Decisions: A Tie for #1 - Wal-Mart v. Dukes

2011-09-29T12:18:00.001-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #3, we talked about Janus Capital v. First Derivative, which gives mutual-fund bosses "an easy way to skirt class-action lawsuits."

In our tie for the #1 slot, one of the contenders had an enormous and immediate impact on more than a million women in the workforce, and opens the door for discrimination on a massive scale.

Worst Decisions of the 2010-11 Corporate Court Term: #1 (tie) Wal-Mart v. Dukes

In Wal-Mart, the Supreme Court prevented more than a million women from banding together to pursue their case against the discriminatory practices of Wal-Mart management. The 5-4 majority rewrote the federal rule governing class actions by setting a higher “commonality” threshold for all plaintiffs. This will likely bar employees from seeking injunctive relief that previously only needed to pass an “easily satisfied” test.

The majority created new hurdles for disparate-impact cases, where subjective personnel decisions have led to widespread gender or racial disparities in the workforce, by holding that “proving a … disparity is not enough,” and rejecting plaintiffs’ overwhelming statistical evidence of widespread discrimination. The majority instead suggested that victims must prove that conscious and intentional discrimination by top management directs the employment decisions made below in order to obtain class certification. These nearly impossible standards will undermine the incentive for employers to set up objective pay and promotion practices based on published criteria and clear merit-based evaluations of applicants. These practices are very effective at combating the kind of discrimination that occurred at Wal-Mart, where job postings were non-existent and women had to wait for the “tap on the shoulder” (that mostly never came) from mostly male managers to be promoted.

The majority also elevated the company’s written non-discrimination policy to exalted status – despite a complete lack of evidence that it was followed – and assumed that “most managers in any corporation … would select sex-neutral, performance-based criteria for hiring and promotion.” The 120 affidavits from women being called “Janie Qs’” at executive meetings, being paid less than a just-hired 17-year-old boy because “you aren’t male, so you can’t expect to be paid the same,” or told to “doll up” and “blow the cobwebs off” make-up were dismissed as “prov[ing] nothing at all.”

Wal-Mart v. Dukes is the one of the worst decisions of the 2010-11 Corporate Court term because it will allow corporations to get away with discrimination as long as they discriminate on a massive scale.

A Bill To Create New Federal Judgeships

2011-09-28T17:28:00.000-04:00

On October 6, the Senate Judiciary Committee will consider S.1014, The Emergency Judicial Relief Act of 2011.

The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:

2 for the District of Arizona
4 for the Eastern District of California
1 for the District of Minnesota
1 for the Southern District of Texas
2 for the Western District of Texas

The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.

The bill has bipartisan support from co-sponsors Senator Barbra Boxer (D-CA); Senator John Cornyn (R-TX); Senator Al Franken (D-MN); Senator Kay Bailey Hutchison (R-TX); Senator Amy Klobuchar (D-MN); Senator John Kyl (R-AZ); and Senator John McCain (R-AZ).

Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York).

All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.

The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions, #3: Janus Capital v. First Derivative

2011-09-28T09:10:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #4, we talked about American Free Enterprise v. Bennett, which makes it easier for wealthy special interests to buy elections.

Worst Decisions of the 2010-11 Corporate Court Term: #3: Janus Capital Group v. First Derivative Traders

In a 5-4 decision, the Corporate Court created a major new loophole that allows holding companies in the $12 trillion mutual-fund industry to escape liability for securities fraud. The corporations may now create subsidiaries that can then make false and misleading statements on behalf of the parent company and that have no assets other than investors’ money.

Janus Capital Group is a huge financial investment corporation that has created numerous subsidiaries, including Janus Investment Fund, which deliberately misled investors in its mutual fund prospectus by telling the public that it did not allow hedge funds to engage in “market time” transactions. Behind the scenes, hedge funds were routinely engaging in just those sorts of timing transactions with Janus. When the truth came out, the Janus stock dropped precipitously, costing deceived investors millions.

Rule 10b-5 of the securities laws prohibits “mak[ing] any untrue statement of a material fact.” In this case, the deception about market timing certainly qualified as an untrue material statement. However, the pro-corporate majority decided Janus Capital could not be liable because it had not “made” the statement, only Janus Investment Fund had. It arrived at this fiction by concluding that only the party with “ultimate authority” over a statement can “make” it. A speechwriter does not a make a statement, only the speaker does, the majority reasoned.

The dissent attacked this conclusion as a distortion of the common use of the English language. “Every day, hosts of corporate officials make statements with content that more senior officials of the board of directors have ‘ultimate authority’ to control…. Nothing in the English language prevents one from saying that several different individuals, separately or together, ‘make’ a statement that each has a hand in producing.”

The tipping point between these competing visions should turn on whether one believes Congress, in drafting Rule 10b-5, intended to immunize corporate fraud or protect investors. The pro-corporate majority argues that Rule 10b-5 must be read narrowly, which in this instance would immunize corporate fraud. As Justice Breyer noted in dissent, the majority’s interpretation would often leave no one accountable under the securities laws, even for fraud committed through intentional lying, if the subsidiary’s board was as deceived as investors were by the original perpetrator’s lies. It is difficult to imagine that Congress intended to open such a gaping loophole in the law.

Janus Capital Group v. First Derivative Traders is number three on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because, as one article put it, “[t]he U.S. Supreme Court has shown mutual fund bosses an easy way to skirt class-action lawsuits.”

Upcoming Votes On Long-Delayed Nominees

2011-09-27T17:26:00.001-04:00

Senate Majority Leader Harry Reid (D-NV) announced late last night that the Senate will vote on six judicial nominations on Monday, October 3.

District Court nominees Nanette Jolivette Brown (Eastern District of Louisiana), Nancy Torresen (District of Maine), William Francis Kuntz, II (Eastern District of New York), Marina Garcia Marmolejo (Southern District of Texas), and Jennifer Guerin Zipps (District of Arizona) are scheduled to be confirmed by unanimous consent.

A roll call vote will be held to vote on the confirmation of Henry Floyd to the United States Court of Appeals for the Fourth Circuit. The seats that Floyd, Kuntz, Marmolejo, and Zipps will fill if confirmed have all been deemed judicial emergencies by the Administrative Office of the United States Courts.

Senator Reid also secured unanimous consent to vote on four additional district court nominees at a time to be determined by the majority leader, after consultation with the Republican leader, sometime after October 11: Jane Margaret Triche-Milazzo (Eastern District of Louisiana), Alison Nathan (Southern District of New York), Susan Owens Hickey (Western District of Arkansas), and Katherine Forrest (Southern District of New York).

All of these nominees were sent to the Senate floor by the Senate Judiciary Committee with little to no opposition; eight were reported out on voice votes and two by strong, bipartisan roll call votes (Nathan, 14-4; Hickey, 15-3). Nonetheless, Republican stall tactics to keep President Obama’s nominees off the bench have dragged out the process of filling these empty judicial seats.

The average time from nomination to confirmation for the six nominees to be considered on October 3 will be 238 days; Marina Marmolejo, whose seat is a judicial emergency, will have waited 433 days to be confirmed to take her place on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions #4: Arizona Free Enterprise v. Bennett

2011-09-27T11:54:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #5, we talked about Connick v. Thompson, which makes it easier for prosecutors to hide evidence.

Worst Decisions of the 2010-11 Corporate Court Term: #4 Arizona Free Enterprise Club’s Freedom PAC v. Bennett
Protecting the Power of Wealthy Special Interests to Buy Elections

In a 5-4 vote, the Supreme Court overturned an inventive policy that Arizona implemented in 1998 to combat corruption by reducing the influence of powerful special interests in elections.

Arizona voters passed the Citizens Clean Election Act in 1998 in response to a state political culture that the New York Times called “an open sewer of corruption.” Prior to the Act, two consecutive governors were removed for corruption and almost 10% of the state legislature was charged with misconduct, including a chairman of the House Judiciary Committee who was caught stuffing a gym bag with $55,000 in cash. The Act allowed candidates who abide by strict spending limits to receive public funds for their campaigns and to receive increases in those funds to match spending by well-funded independent groups supporting their opponents or wealthy self-financing candidates.

The Supreme Court overturned the Act in an ironic interpretation of First Amendment free speech law. The Court’s conservative majority examined a law that increased speech by providing candidates with more resources to communicate with voters and determined that it violated the First Amendment by substantially burdening privately funded candidates.

In her dissent, Justice Kagan stated that preventing corruption following a political scandal should be deemed a compelling government interest that passes constitutional muster.

She added that the law applies equally to candidates of all viewpoints, and that what the Act’s opponents seek “is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program.”

Arizona Free Enterprise Club’s Freedom PAC v. Bennett is number four on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because the Court has closed off another avenue of reform designed to reduce the undue influence of corporate interests and wealthy candidates in political races.

Worst Decisions, #5: Connick v. Thompson

2011-09-26T08:56:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Last Friday, at #6, we talked about PLIVA v. Mensing, which gave generic drug-makers a free pass on safety labeling.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Connick v. Thompson
Making it Easier for Prosecutors to Hide Evidence at the Expense of Innocent Defendants

A 5-4 split decision protected district attorneys who allow prosecutors in their office to illegally withhold exculpatory evidence from criminal defendants.

More than 14 years ago, John Thompson was accused of a high-profile murder. Following the publicity surrounding the murder accusation, victims of an unrelated armed robbery came forward and accused Thompson of that robbery. Thompson was convicted of the robbery after prosecutors hid the fact that the robber’s blood type did not match Thompson’s.

In the subsequent murder trial, Thompson did not testify to rebut the charges against him because doing so would have allowed his robbery conviction to be entered into evidence. Thompson was convicted of murder and spent 14 years on death row. Thompson’s private investigator found the exculpatory blood evidence one month before his scheduled execution. As a result, both of Thompson’s convictions were vacated.

Following his release, Thompson won $14 million in damages from Harry Connick, the Orleans Parish District Attorney, for his failure to train prosecutors about required disclosures of exculpatory evidence to defendants under Brady v. Maryland. The district attorney appealed this award, arguing that he could not be liable based on a single violation unless strong indications existed that training was necessary. Justice Thomas, writing for the Court, reversed the award, holding that “Thompson did not prove that [Connick] was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training.”

Justice Ginsburg, in a scathing dissent that she read from the bench, argued that the conservative majority ignored extensive evidence demonstrating to the district attorney the need for training. The Court dismissed as irrelevant four Orleans Parish convictions that were reversed in the 10 years prior to Thompson’s armed robbery trial because of Brady violations. In addition to the blood evidence, the dissent described the prosecution’s failure to inform Thompson of several pieces of evidence that called into question the credibility of key witnesses.

Justice Ginsburg wrote that “it was hardly surprising that Brady violations in fact occurred” since: “(1) Connick, the Office’s sole policymaker, misunderstood Brady. (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady. (3) Prosecutors in the Office received no Brady training. (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.” The dissent characterized the district attorney’s office as a “tinderbox” in which “Brady violations were nigh inevitable.” Thompson’s expert witness called Connick’s supervision of prosecutors on Brady “the blind leading the blind.”

Connick v. Thompson is number five on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because district attorneys will now have less of an incentive to ensure that the prosecutors who work for them understand their legal obligations. As a result, innocent criminal defendants may never learn of favorable evidence that could save their lives and ensure their freedom.

President Obama Nominates Nguyen, Wimes

2011-09-23T16:12:00.003-04:00

President Obama has nominated Judge Jacqueline H. Nguyen to the United States Circuit Court of Appeals for the Ninth Circuit, and Judge Brian C. Wimes to the United States District Court for the Eastern and Western District of Missouri. This Circuit Court seat is one of 35 federal vacancies to be designated a judicial emergency by the Administrative Office of the United States Courts.

Judge Nguyen is currently a United States District Judge in the Central District of California in Los Angeles and is the first Vietnamese American to serve on the federal bench. If confirmed, she would be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.

Judge Wimes has served since 2007 on the 16th Judicial Circuit Court of Missouri. When appointed to the seat, he was the only African-American judge serving in Jackson County.

With these nominations, there are now 58 nominees pending for the 115 vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions, #6: PLIVA v. Mensing

2011-09-23T10:05:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #7, we talked about Ashcroft v. Al-Kidd, which protected the unfair tactics used to detain an American citizen.

Worst Decisions of the 2010-11 Corporate Court Term: #6 PLIVA v. Mensing
Giving Generic Drug Makers a Free Pass to Withhold Information About Drug Safety

In PLIVA, Inc., the Court’s 5-4 conservative majority immunized generic drug manufacturers, whose drugs comprise 75 percent of the market, from state tort liability when they fail to inform the Federal Drug Administration (FDA) that their labels inadequately warn consumers of health risks.

Brand-name drug manufacturers have the ability and the duty to change label warnings based on newly-discovered risks without consulting the FDA, but generic drug manufacturers need only copy brand-name warnings. To enhance drug safety, the FDA took the position that generic-drug makers must inform the agency when its warning labels, copied from the brand-name label, do not account for newly discovered risks. Often generic manufacturers will know of such risks because more people take generic drugs and because they come on the market later than brand-name drugs, which offers more time to assess side effects. In this case, the risks stemmed from taking Reglan, a drug that caused a severe and irreversible neurological disorder as a side effect in a growing number of patients.

The majority concluded that it was impossible for generic-drug makers to meet both the federal requirement that they copy brand-name labels, and state law duties to provide adequate warnings, and therefore gave no effect to FDA’s position that the generic drug makers should have taken steps to warn the agency of the problems with Reglan. The majority acknowledged that, from the perspective of plaintiffs, its ruling “makes little sense.”

In the dissent’s view, the generic-drug makers should not have been permitted to claim “impossibility” because they never even attempted to warn the FDA that the newly-discovered risks of Reglan were not included in the brand-name or generic warning labels for the drug. It is implausible that the FDA would not have asked the brand-name manufacturer, and by extension the generic makers, to change labels if the defendants had warned the agency of adverse effects. It is equally implausible that Congress intended to protect only consumers of brand-name drugs while leaving users of generic drugs without recourse.

In a cruel twist, the plaintiffs received the generic version of Reglan only because their pharmacist substituted it for the brand-name drug their doctors prescribed. Had they received the brand-name version, they would have at least been able to sue because of the greater duties of brand-name drug manufacturers. Instead, the Corporate Court’s decision leaves them with no remedy.

PLIVA v. Mensing is number six on the Worst Decisions of the 2010-11 Corporate Court term because it gives generic-drug manufacturers a free pass to sit back and do nothing when their warning labels are dangerously inadequate.

Worst Decisions, #7: Ashcroft v. al-Kidd

2011-09-22T12:03:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #8, we talked about J. McIntyre Machinery v. Nicastro, which protected foreign corporations from accountability when their products cause harm.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Ashcroft v. al-Kidd
Giving the Seal of Approval to Harsh Imprisonment of Americans under False Pretenses

The Supreme Court threw out a lawsuit brought against former Attorney General John Ashcroft by Abdullah al-Kidd, an American citizen who was detained for 16 days in harsh conditions.

Al-Kidd was accused of no crime and responded with full cooperation to several FBI requests for information. Nonetheless, federal law enforcement, which had no intention of obtaining testimony, detained al-Kidd using a material witness warrant supported by an affidavit that included several falsehoods and omissions. As a result, al-Kidd was held in a cell that was lit 24 hours a day and was subjected to strip searches, body cavity searches, and shackling of his wrists, legs, and waist.

All eight justices who heard the case held that Ashcroft was entitled to qualified immunity because there was no “clearly established” law stating that using a material witness warrant in the way he used it was illegal. Nonetheless, Chief Justice Roberts and Justices Scalia, Thomas, and Alito sought to go even further. They stated conclusively that Ashcroft’s actions were lawful despite the federal government’s use of false and misleading information to obtain the warrant. For example, law enforcement stated that al-Kidd purchased a first-class one-way ticket to Saudi Arabia instead of the coach round-trip ticket he actually purchased. Law enforcement also did not tell the magistrate that they had no intention of asking al-Kidd to testify or that his entire family lived in the United States, where he was born and raised.

Justice Ginsburg, in an opinion concurring in the judgment that was joined by Justices Breyer and Sotomayor, described the Court’s assumption as “puzzling.” Citing the omissions and falsehoods used to obtain the warrant, she added that “there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination (that Ashcroft acted lawfully) was neither necessary nor proper.”

Ashcroft v. al-Kidd is number seven on AFJ”s Worst Decisions of the Corporate Court Term because it denied justice to an American citizen who suffered profound harm at the hands of his government and because the leading four-person opinion needlessly approves deceptive tactics used to unfairly arrest of innocent Americans.

Senate Confirms Two District Court Nominees

2011-09-21T15:34:00.001-04:00

On Tuesday, the Senate confirmed John Andrew Ross to the United States District Court for the Eastern District of Missouri by unanimous consent and Timothy M. Cain to the United States District Court for the District of South Carolina by a vote of 99-0. The vacancies they will fill have been designated judicial emergencies by the Administrative Office of the U.S. Courts.

Despite the emergency status of the seats and the unanimous affirmation of the nominees by the Senate, it has taken 294 days from the date of his nomination to last night’s vote for Ross to be confirmed, and 217 days for Cain.

The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support. There are now 112 current and future vacancies in the federal judiciary—1 in 7 judgeships—only 2 fewer than there were at the beginning of the current Congress.

Worst Decisions, #8: J. McIntyre Machinery v. Nicastro

2011-09-21T12:04:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #9, we talked about Sorrell v. IMS Health, which gives corporations a First Amendment right to use private medical information to market expensive drugs.

Worst Decisions of the 2010-11 Corporate Court Term: #8 J. McIntyre Machinery v. Nicastro
Protecting Foreign Corporations from Accountability When Their Products Cause Harm

The Corporate Court ruled 6-3 in this case against Robert Nicastro, a man who lost four fingers when his hand was caught in an industrial cutting machine he used at his job in New Jersey. Nicastro claimed that the machine was missing an important safety guard that could have prevented the injury. The Court ruled that a New Jersey state court could not even hear Nicastro’s negligence claim against J. McIntyre Machinery, the machine’s England-based manufacturer. The majority held that the state court lacked jurisdiction over the company because J. McIntyre had not engaged in conduct that was purposely directed at the New Jersey market.

J. McIntyre had an exclusive American distributor that it hoped would sell to every region of the United States. Nicastro’s employer purchased the machine that injured him at a trade show in Las Vegas.

Justice Ginsburg’s dissent argued that J. McIntyre should not be granted a free pass to avoid liability in every state court in the United States merely because it directed its distributor to attract customers “from anywhere in the United States.” J. McIntyre UK’s president described the company’s strategy in the following way: “All we wish to do is sell our products in the [United] States—and get paid!” Ginsburg argued that “[t]he machine arrived in Nicastro’s New Jersey not randomly or fortuitously, but as a result of the U.S. connections and distribution system that McIntyre UK deliberately arranged.” The dissent contrasted what Nicastro was asking of J. McIntyre with what the majority was now requiring of Nicastro.

On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to develop a market for its industrial machines anywhere and everywhere in the United States? Is not the burden on McIntyre UK to defend in New Jersey fair, i.e., a reasonable cost of transacting business internationally, in comparison to the burden on Nicastro to go to Nottingham, England to gain recompense for an injury he sustained using McIntyre’s product at his workplace in Saddle Brook, New Jersey?

J. McIntyre Machinery v. Nicastro is number eight on AFJ’s Worst Decisions of the Corporate Court Term because the Court ensured that many individuals who are harmed by defective products made by foreign manufacturers will be denied access to justice even when the manufacturers are intentionally profiting from U.S. consumers.

AT&T Aftermath: Companies Get to Judge Their Own Compliance with Wage Law

2011-09-21T09:01:00.000-04:00

The Corporate Court's decision in AT&T Mobility v. Concepcion set a dangerous precedent, and is forcing everyday Americans out of the courthouse. AFJ takes a look at some of the cases impacted by the decision.

Case: Quevedo v. Macy’s, Inc.

Carlos Quevedo worked at a Macy’s in California. When he was terminated, Macy’s did not promptly pay him his final wages as required by state labor law. Quevedo filed a lawsuit on behalf of himself and all other victims of Macy’s practices. But Macy’s required all new employees to agree to use its so-called “InSTORE” dispute resolution program, which culminates in binding arbitration proceedings and requires workers to waive any right to form a class. The court brushed aside Quevedo’s argument that the arbitration clause was unconscionable, and ruled that, after Concepción, Quevedo could not even use California’s Private Attorney General Act, a law which lets citizens stand in the shoes of state law enforcement officials, to take Macy’s to court for its illegal practices.

Click here for more on the aftermath of the Court's AT&T decision.

Jordán, Four District Court Nominees Get Committee Hearings

2011-09-20T17:22:00.003-04:00

The Senate Judiciary Committee today held hearings on the nominations of Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit and of John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to serve as United States District Judges in the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.

If confirmed, Jordán and Nuffer will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U. S. Courts. During their testimony, both Nuffer and Gerrard spoke of the difficulties people are having accessing justice due to increasing court caseloads and insufficient personnel and other resources. Senator Amy Klobuchar (D-MN) presided over the hearings; also in attendance were committee members Senator Orrin Hatch (R-UT) and Senator Mike Lee (R-UT).

With 113 vacancies in our federal courts, 37 of them judicial emergencies, the Senate should move swiftly to take action to put these nominees on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary June–August 2011: Judicial Nominations in the 112th Congress.

Worst Decisions, #9: Sorrell v. IMS Health

2011-09-20T11:55:00.000-04:00

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #10, we talked about Schindler Elevator v. United States, which protects corporations who cheat American taxpayers.

Worst Decisions of the Corporate Court Term: #9: Sorrell v. IMS Health
Giving Corporations “Free Speech” Rights to Profit from Medical Records

In the spirit of Citizens United, the Corporate Court again created expansive “free speech” rights for corporations at the expense of everyday Americans. Data mining corporations use prescription information that doctors are required by law to collect to target those doctors with sales pitches about various drugs. Vermont restricted pharmacies from selling such information without the individual doctor’s consent. Research shows that such marketing affects doctors’ prescribing habits, which forces patients to buy expensive versions of medication over less expensive and equally effective alternatives.

Vermont argued that the pharmacies do not have an unfettered right to use the records as they wish, and noted that the Supreme Court has held that when the government compels production of otherwise private information, it may restrict further use of that information. Indeed, limits on the use and disclosure of medical records are widely accepted speech restrictions.

In a 6-3 vote, the Corporate Court held that Vermont illegitimately burdened the corporations’ free speech rights and that the statute will have to survive strict scrutiny, a heightened standard that typically results in laws being overturned.

As Justice Breyer noted in his dissent, “[n]othing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process.” The statute only seeks to prevent corporations from using for marketing purposes information that doctors are required to collect about their prescriptions. Nonetheless, the Court held that the corporations deserve the same heightened First Amendment protection to use private medical data to pad their profits that everyday Americans receive when voicing their opinions about public issues.

Sorrell v. IMS Health is number nine on AFJ’s Worst Decisions of the Corporate Court Term because it grants corporations a First Amendment right to use private medical information against the wishes of doctors to market expensive drugs to those doctors.