July 1, 2009

"Did the Court move right?"

Jonathan Adler challenges a pervasive press meme.

Jim Copland on Ricci/firefighters case

At City Journal: "The Supreme Court's commendable Ricci verdict won't change the Catch-22 logic of discrimination law. ...It won't happen in this Congress, but ultimately, let's hope that disparate impact finds itself in the dustbin of history."

Some other noteworthy reactions to Ricci: Ilya Somin at Volokh (decision may increase costs of litigation and compliance for employers, shedding further doubt on critics' contention that Roberts Court is "pro-business"); Michael Fox (noting Ginsburg language about majority ruling lacking "staying power"); Daniel Schwartz (rounding up reactions) and followup (five things employers can learn from case); Marc Alifanz, Stoel Rives "World of Work" (Congress may undo, as it undid Wards Cove); NYT "Room for Debate". And as mentioned earlier, I've discussed the decision in pieces for Forbes.com and the New York Post.

"An Honest Services Bribery Case Gets Cert"

Tom Freeland has details on the Supreme Court's agreement to review a controversial body of federal criminal law, at least as regards one of its aspects: does the defendant's conduct in an "honest services" case have to violate a duty imposed by state law? The case, which originated in Alaska, is called Weyhrauch v. U.S.

June 30, 2009

"Court: Discriminate -- with discretion"

I'm in today's New York Post with a second take on yesterday's Ricci (New Haven firefighters) case. Link thanks: Instapundit. My first take on the decision, at Forbes.com yesterday, is linked here, and see also comments on it by Daniel Schwartz, Jon Hyman, Ohio Employment Law (to whom thanks for the kind comments as well), and Scott Greenfield (cross-posted, slightly adapted, from Overlawyered).

WSJ on Cuomo v. Clearing House Association

A WSJ editorial discusses yesterday's preemption surprise at the Supreme Court, in which Justice Scalia crossed over to join the liberal wing in holding that the National Bank Act and its enforcing regulations do not, after all, oust the states from regulating lending by federally chartered banks:

Justice Scalia's opinion distinguishes between "visitorial" and "prosecutorial" power over national banks. By visitorial he means the power to demand whatever information may be necessary to regulate an institution. Mr. Scalia argues that while the federal Office of the Comptroller of the Currency (OCC) has sole visitorial power over federal banks, state AGs may nonetheless "prosecute" those banks for violations of state law.

There's nothing wrong with this argument as it pertains to, say, state employment law, fraud or other laws of general applicability. But as Justice Clarence Thomas points out in his dissent, lending, including mortgage lending, is a core banking activity authorized by the 1864 National Bank Act and already regulated by the OCC. It is exactly the kind of banking that national banks are supposed to have the freedom to do under a law designed to create a uniform regulatory environment across the entire country.

June 29, 2009

Now up at Forbes.com: my reactions on Ricci

I've got an opinion piece up at Forbes.com on today's Supreme Court decision in Ricci v. DiStefano, the New Haven firefighter reverse-discrimination case. The title: "Sued If You Do, Sued If You Don't: Through the Looking Glass on Affirmative Action" (cross-posted from Overlawyered).

June 11, 2009

Texas's Phillips: a narrow reading of Caperton?

Former Texas Supreme Court Justice Thomas Phillips acknowledges that there'll be more motions challenging nonrecusal ("Caperton" motions), but there "just aren't a lot of cases" where the new constitutional standard will require the judge to step aside: "The holding, as I read it, is that due process is only violated when '[1] a person [2] with a personal stake in a particular case [3] had a significant [4] and disproportionate influence [5] in placing the judge on the case ... [6] when the case was pending or imminent.' Given how narrow that holding is, I'm not sure Caperton will ever be direct precedent for another recusal." [Interview with Tony Mauro, NLJ] More coverage: John Schwartz, NYT; Nathan Koppel, WSJ. Earlier here, here, etc.

June 8, 2009

Initial thoughts on Caperton

The political contribution in Caperton certainly was unseemly. And it was on the outer bound of what we typically see in contested judicial elections. But I question whether it was as "extraordinary" as Justice Kennedy and the justices in the majority seemed to think. For instance, the following part of Chief Justice Roberts's dissent caught my eye: "'Consumers for Justice'--an independent group that received large contributions from the plaintiffs' bar--spent approximately $2 million in this race."

Such oversized contributions from plaintiffs' lawyers in judicial campaigns are the norm, rather than the exception. And it is quite often the case that a single lawyer or firm will dominate such expenditures. For instance, in the Center for Legal Policy's Trial Lawyers, Inc.: Illinois report, we noted that of the $1.3 million raised/spent by the so-called "Justice for All" PAC erected to support the election of Gordon Maag to the state supreme court, "Madison County asbestos lawyer Randy Bono gave Justice for All almost $400,000, while the law firm with which he's affiliated, Simmons Cooper, chipped in $275,000." All told, the Simmons Cooper firm poured over $1 million into supporting Maag's campaign.

Had Maag been elected, would he have had to recuse himself in all cases involving Simmons Cooper? If not, why not?

Surely, a lawyer could come up with a possible distinction. But would such distinctions really be compelling? Is the answer perhaps that Simmons Cooper has multiple matters before the courts, such that independent expenditures on judicial campaigns are perversely disqualifying in inverse proportion to one's litigiousness? Or perhaps the answer is that, however much Simmons Cooper gave to Maag, its share of total expenditures was less than that West Virginia contributor Blankenship's, who gave "approximately two-thirds" of the money given to the "And for the Sake of the Kids" PAC? In the latter case, we must conclude that one's ability to compromise a judge for purposes of the U.S. Constitution is dependant on one's political fundraising prowess, so that a complete defense against constitutional violation might emanate from one's effective use of direct mail.

I think Justice Scalia has it right:

Divinely inspired text may contain the answers to all earthly questions, but the DueProcess Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed--which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

Supreme Court constitutionalizes state-court recusal standards

It's a 5-4 decision (PDF) written by Justice Kennedy and joined by the Court's liberal wing. Coverage of Caperton v. Massey Coal: Jonathan Adler, the WSJ Law Blog, Legal Ethics Forum and the Chamber-backed West Virginia Record. Our earlier coverage is here, here, and here.

Some early commentary: Rick Pildes, Balkinization (case highlights division between justices who want bright-line rules, and those more comfortable with vague standards requiring ongoing judicial intervention), Volokh commentators David Nieporent (con) and Dilan Esper (pro).

June 5, 2009

Volokh on judging and "policy"

Eugene Volokh defends Sonia Sotomayor against Ed Whelan's critique of a joke she told about Supreme Court justices "pondering [] policy implications."

I think Eugene is right. There are many cases in which text and intent are far from clear, and many areas of law in which judges are invited to make policy choices. Even aside from the fact that Judge Sotomayor was telling a joke -- and that her characterization of the Supreme Court strikes me as positive rather than normative -- her comments here hardly strike me as objectionable.