law horse

The ramblings of a legal equine.

[lawhorse]

Playing Catch-Up!

So, I’ve fallen pretty far behind in, well, everything recently. Sorry ‘bout that. We’re going to do a little catch-up today, by which I’m going to go through the cases that were argued before SCOTUS in little one-two sentence bites, so you can get an idea of what’s on the Court’s plate this month.

So, the first week of November, we had Spokeo, Inc. v. Robins, Lockhart v. United States, and Foster v. Chatman, all of which I’ve already discussed. The other cases are under the break.

Week one saw argument in: Torres v. Lynch (As in Attorney General Loretta). This is a fascinating statutory construction* case, regarding whether a state criminal law is “described in” a federal law when the difference is a jurisdictional component. Because we have a limited Federal government, any federal law has to be within Congress’s power, and the statute in question involves Congress’s power to regulate interstate commerce, so the question is whether an enhanced (longer) sentence is permissible when the state law actually violated is identical to the federal law that “describes” it, except that the federal statute required that the defendant affect interstate commerce by his conduct and the state law didn’t.

Shapiro v. McManus involves a rule of Federal Civil Procedure that requires three federal judges to sign off on an injunction (a court order forbidding an action). The question is whether that same rule requires three judges to dismiss a claim as frivolous, or if one judge is enough.

Bruce v. Samuels involves a question of the statutory cap on federal inmate wage garnishment to pay for lawyer and filing fees. Currently, a qualified inmate can only have 20% of his inmate wages garnished to pay for legal services (the government pays for the rest); the question is whether that’s a complete cap, or if it just refers to a particular filing (in other words, whether a defendant who files four different legal challenges loses only 20% of his wages, just like the defendant who files just one challenge).

Last week saw arguments in Montanile v. Board of Trustees of the National Elevatory Industry Health Benefit Plan (say that five times fast). This one is complicated and involves ERISA (The Employment Retirement Income Security Act). Montanile was injured in a car accident caused by a drunk driver, sued, and ultimately won $500,000, after the NEI Health Plan had paid him $100,000 for medical expensives. The NEI Health Plan asked to be reimbursed from the settlement, and Montanile refused, and then spent most of the settlement. Now, if the Plan had sued Montanile’s lawyers before they paid him the settlement, there’s no question that it would have been entitled to the $100,000 reimbursement. However, because the lawyers dumped the money, and the strange way that ERISA is written, means there’s an open question as to whether Montanile has to pay them back. Yeah, I don’t quite get it, either.

Tyson Foods, Inc. v. Bouaphakeo, a class action lawsuit involving how damages are calculated. In order to certify the class**, the plaintiffs’ lawyers used a statistical analysis that ignores differences among the class, and many of the plaintiffs (perhaps hundreds) may not even have been injured in the first place. This is another lawsuit involving employers (in this case Tyson) requiring that employees perform some action necessary to actually work before they clock in (and thus don’t get paid). The problem is, the damages were calculated by assuming ALL of Tyson’s employees were injured in the same way, but the procedures they had to perform off the clock were, in fact, not identical (and some employees may not have had to do anything off the clock).

Luis v. United States involves asset restraint. To prevent a defendant from unjustly benefitting from the proceeds of a crime, the government is permitted to prevent a defendant from using those proceeds to pay for any part of the legal process (so that a guy who steals a million dollars doesn’t use that stolen money to post bail and pay a lawyer and thus get to benefit from the theft). In Luis, the government wanted to freeze Luis’s untainted assets; that is, money he had that was unquestionably not the proceeds of the crime of which he was accused. The problem here is that, after stealing $45 million through Medicare fraud, Luis then spent all that money, so there was no tainted assets to freeze, so the government asked to freeze $45 million in untainted assets, which Luis claims she needs to pay her lawyers.

Yes. $45 million. She just has that lying around in addition to the $45 million she actually stole.

There were no cases this week, nor will there be any next week. On Monday, November 30, the court will hear the last two cases of the November sitting (which makes sense, as November then ends). These are:

Green v. Brennan, a federal employment discrimination law case, which asks when the time period to file a lawsuit alleging that one was “constructively discharged” -- that is, forced to resign through a hostile work environment. Five of the intermediate appellate courts have held that the time starts to run when the employee actually resigns, while three have held that it begins to run when the last discriminatory act that leads to resignation happens.

And, finally, Musacchio v. US. This case involves the law-of-the-case doctrine which is a little complicated, but here’s the short version: When a judge makes a decision involving a case, even though that decision is not binding on other courts, or even on itself, it is binding on that case; in other words, a judge’s decision, even when it isn’t strictly following the law, becomes the law as applied to the case. In Musacchio, the judge accidentally required the jury to consider an additional element of a crime that isn’t normally required, which now becomes the law of the case (in other words, the judge made it harder for the prosecution to prove their case). The question is, when undergoing an appellate review for the sufficiency of the evidence, is the prosecution held to the higher standard, or do they just have to prove the correct elements? There is also a second question of whether a defendant has to raise a statute of limitations defense at trial, or if he can raise it on appeal (this is a doctrine called preservation, which can be pretty tricky to explain, and will have to get its own blog post).

And that’s November! Questions, comments? Don’t forget to hit that ASK button if you want to know more about anything here, or anything in particular!

* That just means it’s about how to read a law.

** A legal term of art meaning that the various plaintiffs in the class action have the right to BE plaintiffs in a class action lawsuit.

[lawhorse]

Argument Analysis: Spokeo, Inc. v. Robins

As promised (if belated), I did finally get through the transcript for Spokeo, Inc. v. Robins! If you need a refresher, you can remind yourself of what Spokeo’s all about here. And, if you want to listen to the oral argument or read the transcript, you can do that here.

Anyway! On to the analysis. Right off the bat, we have Kagan and Sotomayor tossing questions at Andrew Pincus, Spokeo’s lawyer. They seem very skeptical of Spokeo’s argument (me, too), so I think they’re pretty safe bets for Robins. Ginsburg keeps mostly silent, but she brings up a couple of good hypotheticals over the course of the argument that say, basically, what I said: Spokeo’s argument just isn’t sensical.

Scalia pops up with a lot of questions about what harm Congress meant to protect against -- the statute seems more concerned with procedures about correcting credit reporting problems than the problems themselves, and Scalia seems to be angling for a decision that would say that, whatever Robins contends, the injury that he’s complaining of right now aren’t what Congress was trying to protect against. Then again, it’s Scalia, and he might just want to hear himself talk. He throws a couple of softball pitches* to Pincus, including answering one of Kagan’s questions for Pincus, so it’s probably a pretty safe bet that he’s going to come out for Spokeo.

On the other hand, Scalia had a lot of questions for Robins’ lawyer, William Consovoy, which, in my opinion, Consovoy handled pretty adroitly.

Thomas, of course, asked no questions whatsoever.** In cases of this nature, you can usually count on Thomas to follow Scalia.

Roberts got into it a bit with Consovoy, as well, at one time engaging in a long hypothetical situation that, sadly, Consovoy didn’t quite seem to get. Kagan jumped in to try and save him, but I think we can count Roberts in the Spokeo camp.

Breyer and Alito kept mostly silent, especially Alito, though Breyer’s questions seemed to favor Robins. Kennedy’s questions were, naturally, obtuse. I’m going to go out on a limb and say that Alito will vote with the conservative judges, and Breyer with the liberals, which, of course, makes Kennedy the deciding vote.

The real issue here seems to be all of the judges are concerned with a ruling that will open the door for Congress to grant standing everywhere -- or worse, allow any plaintiff to claim a right to sue for any violation of statute, which is absolutely against Supreme Court precedent. And no one seems to have liked the 9th Circuit’s decision; at one point, Roberts suggests a way for Robins to win while still deciding that the 9th Circuit was wrong, and Kagan flat out says, “Now, look, it’s not a good opinion.” Again, the 9th Circuit has a reputation for being frequently overturned by SCOTUS, so a decision that lets Robins win and still effectively overturns the 9th Circuit’s decision is not out of the question.

As we stand now, I think it’s too close to tell whether Robins win, though on my own analysis, I think it’s pretty clear he should win. What I suspect might happen is a decision that lets Robins pursue his case, but severely limits the ability of other people to bring such lawsuits, which I think will please most of the justices. Remember that Robins claims that a wide variety of specific information that Spokeo reported about him was false, and gave examples of how it may’ve hurt him and how he would never know. The Court could, and very well might, hold that any future plaintiffs will have to show the same sort of prospective injury.

Because someone asked, I figure I’ll mention it: there’ll be a few months before we get an actual decision; probably it won’t come this year. Of course, when it does, I’ll be there to break it down.

* In lawyerspeak, a softball is an easy or obvious question asked in oral argument, and they’re usually thrown by judges trying to help out a struggling lawyer.

** Thomas, famously, holds the oral argument process in utter contempt. He’s been known to sleep through oral argument, or even get up and leave the room while the lawyers are arguing. He has gone years between asking questions in oral argument.

[lawhorse]

A Question!

So, someone actually asked me a question, so I’m gonna answer it. I have not quite figured out how to show a picture of the ask in, well, question, so I’ll just quote it.

The question was: ‘What is your take on Brown v. EMA?’* This is a First Amendment case that, honestly, I don’t remember very well, but I’ve got the decision here and let’s get into it! Woo!

Facts first. Actually, the facts are pretty straightforward. California banned the sale of ‘violent’ video games to minors, and a group of video game companies and retailers sued to prevent enforcement of the statute.

A note on procedure, as we just talked about standing, and you might be wondering how someone can have suffered an injury before a law was in effect. Well, as it turns out, when you’re worried that enforcement of a law will have a chilling effect on your First Amendment rights, that’s enough of an injury to give you standing to prevent anyone from enforcing the law in the first place. You can sue the agency who enforces the law in question (the executive branch), which, in California, is represented by the Governor of California, so the lawsuit is against Edmund Brown, then governor of California (fun fact: it was originally Schwarzenegger v. EMA, but his term ended while the case was still pending, and his replacement was substituted, because the lawsuit is against the office, not the person).

Next step: what is the problem with the statute? That requires us to take a look at the First Amendment which tells us that “Congress shall make no law . . . abridging the freedom of speech.”** Note it says Congress, meaning the United States Congress. As originally enacted, the various Amendments did not apply to the States. That changed with the passage of the Fourteenth Amendment, which made, in an excrutiatingly roundabout manner, most of the Bill of Rights applicable to the states. In law, we call that Incorporation -- the Fourteenth Amendment incorporated the First Amendment in the Due Process Clause, which makes the First Amendment applicable to the states.***

We get the majority opinion from Justice Scalia, which is a little bit of a surprise, in an opinion joined by six other justices: Roberts, Alito, Kennedy, Ginsburg, Sotomayor, and Kagan. Two judges dissented: Thomas† and Breyer. Alito also filed a concurring opinion

The case is actually a pretty straightforward discussion of the First Amendment -- indeed, it’s so straightforward that California was forced to argue that they weren’t really in the First Amendment in the first place, because there was no other way to defend their law. What makes it so straightforward? I’m glad you asked that!

In the world of constitutional law, when talking about whether a statute is constitutional, there are three important tests to keep in mind. The easiest test is for cases that really don’t implicate the Constitution; those statutes have to have a rational basis; that is, any reasonable, rational basis for the law will suffice to uphold it. This is absurdly easy to meet, especially because the Court isn’t bound by the legislature’s reasoning -- they can find a rational basis, any basis at all, to uphold the law. Given that, it’s pretty easy to understand that most statutes that fall under rational basis review are upheld. Rational basis is the default review standard; unless the law must be examined under a more exacting standard, the Court uses rational basis.

Next is intermediate scrutiny, which is reserved for a narrow category of cases, the most important of which is sex discrimination. In First Amendment world, intermediate scrutiny is used to examine content neutral restrictions on speech (that is, speech restrictions that do not prohibit speech based on what the speech says, but instead is a restriction on the time, place, or manner of speech). To pass intermediate scrutiny, the state must show that the law substantially furthers an important government interest. California argued that this was the appropriate standard to review its law, as it merely prohibited the sale of video games without regard to the content of those games. You may think that this seems weird, as prohibiting video game sales to minors based on whether or not it is violent seems a lot like banning sales based on the content of the games.

You would be in the company of seven Supreme Court Justices, as Scalia wrote. The First Amendment protects political speech, but states can’t ban speech simply because it’s not overtly political; even entertainment can be the basis for political thought, as Scalia points out. The Court has long said that the Government, generally, cannot ban speech because of its content, with a few very exceptions (for example, screaming ‘fire’ in a movie theater), and video games are no different. Because video games are protected First Amendment speech, any law that limits them is subject to the most exacting standard: strict scrutiny. To pass this test, the law must be the least restrictive means and narrowly tailored to support a compelling government interest. As you can imagine, it is very hard to pass this test. And here, of course, California did not, as preventing kids from playing violent video games is not a compelling government interest, the blanket ban was not narrowly tailored, and, mostly because the video game industry self-regulates with game ratings, wasn’t the least restrictive means. So, as I said, pretty straightforward, once you got to this point.

What about the dissenting opinions? Well, Breyer still applied strict scrutiny, but held that the very detailed California statute actually passed strict scrutiny because it bans from sale a very specific type of video game to minors, who have a lessened (but not non-existent!) expectation of free speech protections. He’s really not right; it is hard to pass strict scrutiny, and, frankly, the California statute doesn’t do it. There is almost always a more restrictive means to achieve the result wanted, and a blanket ban of violent video games is not it.

Thomas said, because he has no concept of how the Constitution actually works, that because video games did not exist when the First Amendment was ratified (1791), video games are not afforded First Amendment protections. This is such a ridiculous argument that I don’t even want to talk about it, but we’re already here. Applying this not-great argument, we can see that, just for instance, the police can search your phone at will, because phones did not exist in 1791 and thus the Fourth Amendment’s protections against unreasonable searches just don’t apply to them.

So, yeah. Scalia got this one right! And, as always, he is eminently readable, so the opinion was pretty fun. We should always take a moment to find the most quotable bit of Scalia in his opinions, which in this case comes when he’s pointing out that kids have always been into gruesome stuff: “Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.'  Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven."

* Actually, I got asked TWO questions in one. I’m not sure that’s allowed under the rules, but at least for now I’m going to answer the first half today, and get to the second cast sometime later.

** Don’t read anything into the fact that it’s the ‘first’ amendment; there is no order to the Bill of Rights (or even the amendments that come after the Bill of Rights), and there is no primacy in any amendment; that is, the First Amendment sheds no light on the Second through Twenty-Seventh Amendments.

*** The Fourteenth Amendment, meanwhile, is reverse-incorporated into the Fifth Amendment, which makes the provisions of the Fourteenth applicable to the federal government. Isn’t constitutional law fun?

† I can use things other than asterisks! But, anyway, you’ll note I will not spend much time talking about Clarence Thomas, because, frankly, he offers nothing of substance in the vast majority of cases. Indeed, his jurisprudence is so bizarre that he rarely gets to write majority opinions, except in what are colloquially called ‘dogs’; cases that are so bad or straightforward that there’s not much to say. For more on Thomas’s disregard for the Court and its institutions, I recommend the admirable book The Nine, by Jeffrey Toobin.

[lawhorse]

Happy Halloween!

It’s the most wonderful time of the year! Ahem. I *really* like Halloween, it is definitely my favorite holiday. So, to celebrate, we* here at lawhorse have a Very Special Blog Post for you: a lawsuit over a haunted house. 

In Nyack, New York, there is a haunted house. By which I mean, by operation of law, there is a house deemed legally haunted. Today, we talk about Stambovsky v. Ackley, a poltergeist, and one judge’s great, great love of puns.

The facts are, weirdly, pretty straightforward: a buyer purchased a house in Nyack, New York, and learned afterwards that the house had a reputation for being haunted, which he didn’t know at the time of purchase. Not wanting a haunted house, he sued the seller to break the contract (called recission) and for damages for fraudulent misrepresentation.** 

Seller lost mostly because seller actually spent a great deal of time building up a reputation of the house as haunted before deciding to sell, and then simply not telling buyer before buyer bought (people who’ve bought or tried to bought houses will remember the list of disclosures a seller has to give you before purchasing the house). During the law suit, the seller tried to defend herself by saying, ‘well, it’s not ACTUALLY haunted, ‘cuz ghosts aren’t a thing.’

The court responded that, because the seller actually helped create the haunted reputation, she couldn’t argue that the house wasn’t haunted “and, as a matter of law, the house is haunted.” This kicked of a firestorm of ghost puns:

[While the broker didn’t have a] duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of [damages] for fraudulent misrepresentation against the seller, plaintiff hasn’t a ghost of a chance [but] I am moved by the spirit of equity to allow the buyer to seek rescission.

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: “Who you gonna’ call?”

[T]he notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.

Application of the remedy of rescission . . . is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

:D

* I mean me. It’s just me. *sad, lonely horse*

** Recission puts the plaintiff back at the position before the contract (he gets his deposit and doesn’t have to buy the house); damages gets him money. Technically speaking, damages are a legal remedy, and recission is an equitable remedy. One day I’ll do a post explaining the difference between law and equity, but for the most part, in the US, it doesn’t matter.

[lawhorse]

Spokeo, Inc. v. Robins Preview

As promised, here's what might be one of the most important cases this term: Spokeo, Inc. v. Robins. This is an important case that will have huge consequences for who can bring a lawsuit in the future.

To really understand what's going on, you do have to have a handle on Article III standing, as that's the issue that's at stake here. Luckily, I talked about standing just a few days ago! If you haven't read that post yet, please do. I'll wait below the cut.

Okay, ready? As always: facts first. Spokeo, Inc., is a (truly awful) company that sells personal information gathered from the internet. That information can include: your name, address, marital status, financial prospects, job history, and even a picture. It is also really bad at data collection, so much of this information is, in a word, wrong. Even the picture.

Enter Mr. Thomas Robins. Robins, according to Spokeo, is a (a) rich, (b) married, (c) fifty year old man. The problem is, Robins is actually (a) not rich, (b) not married, (c) not fifty years old, and (d) doesn't look like his Spokeo picture at all. Robins contends this is really problematic for him, as he is also unemployed, and prospective employers may look him up on Spokeo and not hire him because (a) they think he'll want more money than they're willing to give, (b) they think he'll be took focused on his home life to devote himself to the company, and (c) his age means the company won't get a return on its investment in training him before he retires.* So he's now suing Spokeo under the Fair Credit Reporting Act (FCRA), which requires companies that give out credit information to report that information honestly.**

Now, the FCRA has two provisions that grant a plaintiff such as Robins the right to sue. First, if a reporting agency is negligent in reporting bad information, the plaintiff can sue for actual damages. That means that the plaintiff must not only show negligence, but also show that, because of the negligence, he suffered a specific injury that can be fixed by a particular dollar amount. For example, if someone looked up Robins on Spokeo, and charged him an extra $100 for whatever because of the age that's listed, Robins would have suffered $100 in actual damages.

This can be hard to prove. Robins can't show, for instance, that an employer actually passed him over because of Spokeo information, and the law generally doesn't allow for people to recover for potential wages, because actual wage amounts are hard to ascertain. Thankfully, the FCRA has a second provision that's a little more helpful, not to mention apparently designed to reach just this sort of situation. Where a reporting agency has willfully given out bad information -- that is, it knows that the information it has is bad, could take reasonable steps to fix that, and refuses to do so -- the FCRA entitles a plaintiff to recover either actual damages or statutory damages (that is, damages fixed by statute) of between $100 and $1000. This is, clearly, what Robins is asking for. Robins is also seeking class certification -- that means, he wants this to be a class action lawsuit, so everyone listed on Spokeo with false information would also get to recover. If he wins, Spokeo will lose a staggering amount of money.

Spokeo counters, however, that Robins (and, by extension, every member of the class) lacks standing to bring a lawsuit. As you'll recall, standing requires that a plaintiff have suffered an injury, defendant caused the injury, and the court can order some sort of relief for the injury. The actual claim at stake is whether Robins suffered an injury (though Spokeo has a really bad argument that the 9th Circuit -- the court from which it is appealing -- incorrectly collapsed the three part test down to one part, but it's just flat wrong about that).

The arguments go like this. An 'injury' is a recognizable harm. Person A may call Person B a terrible parent, but that doesn't mean that Person B has an 'injury.' Person B might sue for defamation, but if he can't show that he was in some way harmed by being called a bad parent (and, in some circumstances, that he wasn't, actually, a bad parent), he wasn't injured. Spokeo contends that Robins is asserting an injury never recognized: that bad information, of itself, is enough for an injury even though he can't show any adverse consequences of the bad information. Robins has not, after all, shown that anyone didn't hire him because Spokeo said he was fifty (as I said, he really can't).

Robins counters that Congress, in passing the RCFA, created the injury of which he complains. After all, it said that if a reporting agency willfully reports bad information, it's liable for statutory damages. He compares it to defamation (and you thought that example was just random, didn't you?) where a defendant is liable for certain false words even when the plaintiff can't show any specific damage. It's also very similar to a lot of anti-discrimination statutes (like the Fair Housing Act) that let people who have been discriminated against sue a business that has discriminated against them.

Spokeo's argument really boils down to: Congress can't just create a right to sue without attaching that right to some injury. In a defamation suit, a plaintiff usually has to show damages, and in a discrimination suit, the harm is self-evident (if a landlord doesn't rent you an apartment because of your skin color, then clearly you have lost out on an apartment). If Spokeo is right, however, it means a huge curtailment on Congress's ability to create legal rights for which a plaintiff can sue. The Fair Housing Act is a pretty good example; it's almost impossible to show that you lost money for being unable to rent any specific apartment, after all. You may have been forced to rent an apartment that costs more, but that's a function of being a different apartment, not the discrimination.

It also has huge consequences for class action lawsuits. Robins is not, as far as I can tell, suing as part of a class, but most of the 'friend-of-the-court' briefs*** filed on Spokeo's behalf argue that ruling for Robins will allow "abusive" class action suits. It's not far-fetched. If Robins suit is granted class certification, the plaintiff list could include everyone in Spokeo's database, which, theoretically, is everyone in America who hasn't opted out. Even at the lowest allowable statutory damages, would be billions of dollars Spokeo would have to pay out.

The problem here is, quite frankly, Spokeo isn't right. Congress has all of the power in the world (well, in the Constitution) to create legal rights. It does that all the time. Violation of a legal right, whether it comes from statute or common law or any other source of law we have in this country,**** is an injury by every imaginable consideration. What Spokeo is actually complaining about is whether the court has the authority, under the FCRA, to redress an injury that has no actual damages. The plain text of the FCRA (remember: a plaintiff gets to choose between actual damages or statutory damages, and there is no contest that a court can order a defendant to pay back statutory damages) seems to say that, yes, the court can order the damages that Robins is hoping for.

So, from my perspective, Spokeo has a crazy loser of a case. This is not a good argument (in fact, it's really hard to see why SCOTUS even granted certiorari for it). Worse is the state of their brief. I am not a credit lawyer, I know very little about the FCRA or the law involved in Article III standing (aside from what I learned in law school, after all). Generally, when you read a brief, you have at least a sense of 'okay, they're correct.' That's why, in our system of law, it's important to read the briefs together, so you can evaluate the arguments they make (this is what I do when I'm preparing these posts, after all). Reading just one will generally leave you with a sense of 'oh, of COURSE this guy is correct.'

That didn't happen with Spokeo. At the end of their brief, I already thought they had lost. Now, SCOTUS clerks will pull up the appropriate law and prepare memos for their justices to read that will explain the state of the applicable law in much greater detail than I had going into this, so it could be that there's some weird quirk of standing that I don't know that makes Spokeo's brief more forceful, but that does seem really unlikely. If the justices start in on Robins' brief with the same 'man, Spokeo just isn't right' mentality I have, then it seems pretty good odds that Robins has already won.

Oral argument in on Tuesday, and it'll be interesting to see what questions the justices will have. I, coincidentally, have the day off, and this is one of the cases I'm really focused on, so expect more next week!

* This may seem flippant, but there's two things to keep in mind. One, people do actually get passed over for jobs for these reasons (well, maybe not (b), at least for men, so much), and, two, at this stage, Robins just needs to allege that these things are true, he doesn't have to prove it (yet).

** Spokeo contests that it is a reporting agency under the FCRA (and it may be right). That's really a fact issue, and will probably have to be resolved by the jury. As it stands now, the Court is just going to assume that the FCRA applies. That assumption won't be binding on anyone else, but it's necessary in order to deal with what's really at stake.

*** Amicus curiae (ah MEE kus coo reye ee, plural: amici curiae) are briefs filed, by permission from the Court, by people who aren't involved in the lawsuit, but believe they may be affected by the ruling. Seventeen amici curiae were filed on Spokeo's behalf, primarily from large businesses, including eBay, and both Experian and Trans Union and, for some reason, the state of Alabama.

**** Someday soon, I will do a post about where law comes from, in both the legal and philosophical sense. Also, how many asterisks can I line up before you folks get annoyed with me?

[lawhorse]

Article III

So, there’s a REALLY IMPORTANT case coming up on Monday, and for once it’s not about criminal law, but something called Article III standing. Because the case really doesn’t make sense unless you know something about standing, I’m gonna talk about that today, and talk about the case later.

So, why is it called Article III? Because it comes from Article III of the U.S. Constitution, which creates the basis for the judiciary power of the federal court system (and also explains treason, because that makes sense, right?). You can read the full text <a href=“https://www.law.cornell.edu/constitution/articleiii”>here</a>. What’s important is Section 2, which reads:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

This is the so-called ‘Cases and Controversies’ clause, which grants the federal courts to hear, well, cases and controversies. There’s been a lot of ink spilled over the past two centuries delineating what a ‘case or controversy’ is, but the bottom line for our purposes is that the federal courts only have power to review an actual case. No federal court has the right to make a ruling unless someone wins (some states DO grant the power to issue what are called advisory opinions; decisions based not on a case, but rather on a legal question that someone wants answered to, for instance, decide if specified conduct is legal).

That means, to bring a lawsuit, the plaintiff (the person who sues someone else) must have standing. Standing is a term of art* that means the person has the right to contest something. A plaintiff in a lawsuit in federal court must have what is called Article III standing -- that means they have to show that, if they win, they win *something*. In other words, as the plaintiff, they have the burden of showing that their case is a ‘case or controversy.’ There is a pretty simple test for determining that:

First, the plaintiff must show he has an "injury in fact” -- that the plaintiff, specifically, was actually hurt by some action.

Second, the plaintiff must show that his injury arose from an action by the defendant.

Finally, the plaintiff has to show that the court can grant some relief.

And that’s Article III standing, in a nutshell! Later this week, I’ll talk about what that means in the upcoming case of Spokeo, Inc. v. Robins, which the Court will hear argument on Monday.

* In the law, a ‘term of art’ is a particular word or phrase that has a specific meaning and usage.

[lawhorse]

Argument preview: Foster v. Chatman (really about Batson v. Kentucky).

Hey, I’m back! More or less. Still editin’ away on my book, but I thought I’d take a moment to preview some of the stuff coming up on SCOTUS’s calendar for the November sitting, which starts, easily enough, on the first Monday in November.

The Justices will hear argument in two cases that day, but I’m just going to talk about one of them, which is *impressively* straightforward. That case is Foster v. Chatman. 

Facts first (I’m gonna get that printed on a t-shirt). In 1986, the defendant, Timothy Foster, an African-American, at the time only 18, was accused of murdering Queen Madge White, an elderly white woman, in Rome Georgia, during the course of a botched burglary. Given this, you can see that this was going to be a racially charged trial from the beginning.

So, you can imagine that the defense attorney was not happy when the prosecutor used four of his nine peremptory challenges (more on that below) to strike every African-American individual from the jury. The all-white jury, not very surprisingly, convicted Foster of capital murder. The prosecutor, during the penalty phase, urged the jury to sentence Foster to death to, and I swear I’m not making this up, ‘deter other people out there in the projects.’ That was a deliberate and specific reference, incidentally, to project housing that, at the time, had 32 African-American households out of 34.

During jury selection, the defense counsel argued that the prosecutor had violated a rule set forth in the Supreme Court case Batson v. Kentucky (this sort of argument is, conveniently enough, called a Batson challenge), so that means we need to take a quick detour and talk about jury selection and Batson.

Juries are important. So important that the right to a jury trial is actually in the Constitution twice (Article III, and the Sixth Amendment). Part of the Sixth Amendment is the right to an *impartial* jury, which means that we need some way to test the impartiality of a jury.

Which leads us to voir dire (which is Old Law French for ‘to speak the truth’). Before a petit jury (Old Law French for, well, little jury; and a wholly distinct entity from the grand jury) is seated, a jury panel is convened, and the prosecutor and defense attorney have the right to question the panel. Then, they have two different types of challenges to strike a juror. The first is a challenge for cause, which is a fancy way of saying that the lawyer argues that a jury is simply unfit to sit on the jury. Perhaps the jury has admitted some bias, or isn’t old enough to sit on the jury, or is going to have a child ANY MOMENT, or something. If the judge agrees, then that potential juror is struck, which is a fancy way of saying they have to either go back to Central Jury and be sat on a new panel, or they get to go home. Either way, they don’t sit on *this* jury. Because a challenge for cause goes to the qualifications of the juror, both sides have an unlimited number of cause challenges -- but remember that the judge has to agree.

The other kind of challenge is a peremptory challenge. This is a challenge that, in the normal course of things, doesn’t have to be explained. That juror just struck the lawyer the wrong way, and they don’t want them on the jury.* Because there’s no real rhyme or reason to peremptory challenges (and different lawyers will have different criteria for what makes a good or bad juror, none of which has any actual evidence attached), lawyers are limited in the number of peremptories they can execute in a given trial. At the time of Foster’s trial, each side had nine peremptory challenges.

Now, I said that in the normal course of things a peremptory doesn’t need to be explained. There is one exception: in 1986, the Supreme Court held, for the first time, that a prosecutor cannot use his peremptory challenges in a racially discriminatory manner.** The Court created a three part procedure for a so-called Batson challenge. First, the defendant must show that the prosecutor has excluded a specific, discrete class of people. The prosecutor then must come forward with a racially-neutral explanation for the use of peremptory challenges. Finally, the judge decides if the explanation offered was reasonable, in which case the challenges stand, or if they were ‘mere pretext.’

So, turning back to Foster. Here, there were four African-Americans on the jury panel, and the prosecutor struck all of them, so the defense attorney issued a Batson challenge.*** The prosecutor then offered racially neutral reasons for each challenged jurors. These reasons were, honestly, not great. They included ‘the juror was didn’t ask to be struck from the jury,’ ‘the juror DID ask to be struck from the jury,’ ‘the juror belonged to a particular church, and it’s my opinion that they don’t vote for the death penalty’ (notwithstanding that juror was asked and said he wasn’t opposed to the death penalty) and ‘the juror didn’t make sufficient eye contact.’ In all, the prosecutor gave dozens of reasons for each of the four struck jurors (which is odd, ‘cuz generally you don’t find dozens of reasons to strike someone unless you’re looking for them). In the end, though, the court found the prosecutor persuasive and overruled the Batson challenge.

Fast forward several years. For the first time, Foster gets access to the prosecutor’s file and finds that the prosecutor has *extensive* notes on each of the African-American jurors, which include a specific notation of their race, and a comment that one of them would be acceptable ‘if they had to pick one.’ Each of the African-American jurors was highlighted in the jury panel list, and there was a note in the corner that explained that names highlighted in green ‘Represents Blacks.” There were multiple copies of the list that were circulated around the DA’s office, filled with annotations from various members of the DA’s Office. Each of the African-American jurors was listed on the side as “B#1,” “B#2,” and so on.

All in all, it’s pretty damning. Foster’s conviction is almost definitely going to be overturned (though we’ll be able to tell more after oral argument, and get a sense of how the justices are feeling). So, if it’s so straightforward, why spend all this time talking about it? Well, first, what happened to Foster was unfair. The prosecutor deliberately picked jurors to heighten racial tensions, and then used that to get both the conviction and a death penalty. Foster is *probably* guilty (the evidence is strong, and he did confess, ultimately), but that’s a determination that needs to come from an impartial jury, and there very clearly was not one here.

More importantly, it highlights a problem with the way we choose jurors. The idea of voir dire is to pick an impartial jury panel. Peremptories not only allow but encourage lawyers to do the exact opposite; to strike those jurors they think will vote against them, and hopefully end up with jurors predisposed to take that lawyer’s side. A lot of scholars argue that this is how things are supposed to work out; after all, if both sides are picking off the people obviously biased against them, then that just leaves the impartial jurors on the jury in the end.

Others, and I agree with this second set, argue that the idea of a peremptory challenge, of striking a juror because the juror belonged to a particular church, or spoke Spanish, or an accountant (all real, acceptable reasons to strike a juror with a peremptory challenge) is counter to the guarantee of an impartial jury of one’s peers.

Argument is on Monday. I look forward to listening to it.

* Disclosure: I took a practice jury selection class in law school. We had to take turns pretending to be jurors, and, at the end, the lawyers conducting voir dire did have to explain why they decided to strike each juror in the peremptory challenges. I was struck for being too uppity.

** Over the years, this doctrine has expanded to include both criminal and civil juries, both the prosecutor and the defense lawyer, and ethnicity and gender discrimination.

*** Jury selection happened in 1988, two years after Batson was decided.

[lawhorse]

Still here!

I haven’t forgotten about this! I promise! ^.^; I’ve just been craaaazy busy at work, and, at the same time, I’m editing a book to try and submit to a publisher. I’m under a horrible deadline, so I’m spending all my spare time on *that* stuff (and, well, also Final Fantasy). I’ll be back in the first week of November, I promise! (There might be some little updates over the next few days, too).

[lawhorse]

Case Summaries: Hurst v. Florida

Today, I’m going to talk about yet another big criminal law case, as well as a big death penalty case: Hurst v. Florida. The Supreme Court heard argument on this case on Tuesday, but, me being the busy little pony that I am, I haven’t had a chance to read it yet, so I’ll just talk about what’s going on in the case itself, after the break:

Facts first, as always. And the facts here are a little unusual, and require some knowledge of how Florida -- like California, a state with very unusual law -- handles capital punishment.

But before we get *there*, you have to know the death penalty works under the Eighth Amendment to the Constitution. SCOTUS has long held that death is different, and the rules that apply in a regular case can’t stand when a defendant’s life is on the line. To make a long story short (as best as I can), SCOTUS has held that, if a defendant is to be punished more severely because of the specific facts of his crime -- so called ‘aggravating factors’ -- it must be a jury who finds that those factors are true. However, the Court has never really explained what that means.

Death penalty cases are a little weird, because, in essence, there are two trials. First is the trial that we’re all familiar with (or at least I am), where a prosecutor must prove, beyond a reasonable doubt, all of the essential elements of a crime. In most states, after a prosecutor has done that, the judge then sets an appropriate sentence, typically without input from the jury.* Where death comes into play, though, there is frequently a second trial to determine if there are aggravating factors that warrant capital punishment. In every state except for Florida, if the jury does not elect, by unanimous vote, to sentence the defendant to death, the defendant cannot receive the death penalty.

Florida, however, does things differently. First, the vote does not have to be unanimous; rather, only seven jurors need to vote for the death penalty. Second, the judge can ignore the jury’s *recommendation* for a life sentence, so long as it found the existence of aggravating factors. In short, that means that so long as seven of twelve jurors found that some aggravating factor exists (and they don’t have to agree on the factor), even if the jury ultimate votes for a life sentence, the judge can sentence the defendant to death.

This brings us around to Hurst. In 1998, Hurst murdered a coworker during a robbery of the Popeyes at which he worked. He was convicted after trial, and the jury found that there were several mitigating factors: his young age at the time of the crime (Hurst was 19), a history of mental illness, and a lack of criminal record. The jury does not have to say what aggravating factors it found, but the trial court enumerated two: the heinous, atrocious, or cruel nature of the crime (Hurst’s victim was found bound and gagged in a freezer), and that the murder was committed during a violent felony (robbery). The trial court then sentenced Hurst to death.**

Hurst, of course, appealed, all the way to the Florida Supreme Court, which held in a divided opinion (4 to 3) to affirm his sentence. From the Florida Supreme Court, he appealed to SCOTUS, which, obviously, granted certiorari. He has two prongs on appeal.

Under the Sixth Amendment, Hurst claims that the jury’s minimal role, and the judge’s outsized role, is a violation of his rights. Among other things, the Sixth Amendment guarantees a right to a trial by an impartial jury. Under the Eighth Amendment, he claims that allowing a split jury to decide on death is a violation. Again, Florida is unique in this regard; every other state requires a unanimous verdict to impose the death penalty.

Florida is arguing that the jury is only guaranteed a role in the setting of punishment; no one has ever required that it be the final arbiter (and, indeed, in most states that still have the death penalty, if not all of them, the judge may impose a life sentence without parole even when the jury does vote to execute the defendant). The split jury is a more interesting question because SCOTUS has held that a unanimous jury is not a guarantee in a state criminal action (though it is a requirement in a federal criminal trial).

And that’s where we stand. More this weekend, after I’ve had a chance to read the transcripts.

* Again, though, the jury must find any aggravating factors that enhance a sentence; it’s a little tricksy how that works, but here’s the best example: in New York, there is a Hate Crime enhancement to punishment. If a defendant commits certain crimes and is motivated by bigotry, the penalty is more severe. Because this elevates the potential sentence beyond what the statute normally allows, the jury must affirmatively find that the defendant was motivated by bigotry. On the other hand, if a judge decides, based on the facts presented at trial, that a defendant was motivated by bigotry, even though the jury did not rule (or it wasn’t presented to the jury), the judge can give a harsher sentence than the average, so long as the sentence doesn’t exceed what’s set out in the statute. It’s a fine distinction, and one that has been litigated much, so I’ll probably do a post on this issue -- called an Apprendi issue, after the case that delineated the rule -- in the future.

** He was actually sentenced twice; in the first penalty phase, he was prevented from giving evidence to the jury of his diminished mental capacity; the Florida Supreme Court held that was improper, and he was given a second penalty trial.

[lawhorse]

Case Summaries: Montgomery v. Louisiana

Today, SCOTUS heard argument in two big cases that are going to have pretty serious repercussions. I haven’t had a chance to read the argument transcripts yet, so my argument analysis will have to come later.

However! I can talk about the cases themselves. So that’s what I’m going to do today, starting with Montgomery v. Louisiana. The other case, Hurst v. Florida, I’ll tackle (probably) tomorrow.

Facts first (a common refrain!). Actually, Montgomery starts waaaay back in 2012 with another case: Miller v. Alabama. In Miller, the Supreme Court struck down Alabama’s system of mandating a life sentence without the possibility of parole for juvenile offenders.

That’s complicated, so let me unpack that. In Alabama, certain kinds of murder carried a mandatory life-without-parole sentence. That meant that juveniles (individuals less than 18 at the time of the crime) could spend the rest of their lives in prison with no opportunity or hope of ever getting out. As the Supreme Court has held on numerous occasions, when it comes to punishment, juveniles are different, and the rules that hold sway for adult offenders don’t always do so for minors. One such minor sued and, in 2012, SCOTUS held that a juvenile offender cannot receive a *mandatory* sentence of life imprisonment. It’s not important for this case, but do note that doesn’t mean that a juvenile can’t receive that sentence, only that it can’t be mandatory. The Court did say that it should be a rare occasion, however.

So, that takes care of Miller, but what about all of the other juvenile defendants in jail? That brings us to yet another case: Teague v. Lane. Teague is a pretty complicated procedural case, but the take-away is this: when it comes to a rule of criminal law, it will not be retroactive unless either it places certain conduct beyond the power of the legislature to prohibit or to punish, or if it’s not truly a new rule -- that is, the announced rule is required by the rules that already exist.

That brings us around to Montgomery. In 1963, when Montgomery was just 17 years old, he murdered a deputy sheriff in East Baton Rouge, Louisiana. The murder of a law enforcement officer triggered the mandatory sentencing scheme, and Montgomery was sentenced to life without the possibility of parole. He has been in prison since. He is currently 69 years old.

Montgomery now contends that Miller announced a substantive new rule limiting the kind of punishment that punishment that may be pronounced -- the first Teague exception. If SCOTUS agrees with Montgomery, his sentence gets vacated* and so does every other person in his shoes, a not insignificant number.

That’s not the only wrinkle in this case, either. Teague is federal law, not state law, and states do not have to follow Teague. Neither Montgomery (obviously) nor Louisiana (less obviously) contended that federal law was inapplicable, so SCOTUS assigned a lawyer to argue that it couldn’t hear the case.** That lawyer, Richard D. Bernstein, Esq., argued that Louisiana had previously decided, under state law, that Miller would not retroactively apply to Louisiana sentencing schemes. If SCOTUS agrees and finds that the Louisiana Supreme Court decided that Miller is not retroactive based on state, not federal, law, then it will rule that it doesn’t have jurisdiction and dismiss the case.**

That wouldn’t end the inquiry, though, because Montgomery appealed directly from the Louisiana Supreme Court. He *still* has the opportunity to start over in federal trial court and work his way *back* up to SCOTUS. Just in case you thought this was all too straightfoward.

Oral argument was today, and the transcript is already up, but, as I said, I haven’t had a chance to read it. I probably won’t until the weekend, but once I do, I’ll discuss the three sides’*** arguments.

* It doesn’t matter for the case, but it should be noted that, if Montgomery wins, his conviction stands; it’s only the sentence that’s struck down. He would have to return to trial court for a new sentencing hearing, and even under Miller, the possibility of life without parole remains -- what Miller prohibits is the mandatory sentence.

** Bernstein isn’t arguing what lawyers would call the merits of the case; that is, whether Montgomery is right or wrong. He is only arguing that SCOTUS can’t actually hear the case.

*** Montgomery, Louisiana, and Bernstein.

[lawhorse]

SCOTUS prediction: Kansas v. Carr and Kansas v. Gleason

So, commentators are saying that this term is going to be chock-full-o’ Eighth Amendment cases. Given last term’s blockbuster (and, in my opinion, poorly decided) decision in Glossip v. Gross -- or more specifically, Justice Breyer’s scathing dissent where he opined that the death penalty as it exists now is most likely unconstitutional -- and Justice Scalia’s recent prognostication that the death penalty is likely to be overturned in short order, it’s not that unlikely a prediction that we might see a lot of death penalty cases this term. And, in fact, yesterday we heard oral argument in the first two (actually three) death penalty terms. I’m gonna talk about these today.

Facts first. The first case is Kansas v. Gleason. Gleason, with a couple of codefendants, robbed and stabbed an old man. Then, for good measure, he murdered a *second* person who had helped in the first robbery, because he thought she had been cooperating with the police. The second case was a joint trial of two brothers, Jonathan and Reginald Carr (both cases are, of course, titled Kansas v. Carr). The facts of the Carr murders are so gruesome that I feel like I shouldn’t actually detail them here. Suffice it to say, they brutally victimized and then killed five people, and attempted to kill a sixth, who was saved by, no lie, a hair clip; she was the key witness against the brothers.

All three defendants were convicted after a jury trial. Now, in most cases, when a defendant is convicted by a jury, it’s the judge who passes sentence. However, when capital punishment is possible, in order to fulfill the guarantee of the Eighth Amendment, a jury *must* hear all the applicable aggravating and mitigating factors, and must affirmatively decide to sentence the defendant to death. This is done in a punishment face, separate from the trial, though before the same jury. Aggravating factors must be proven beyond a reasonable doubt -- a pretty high burden -- but any mitigating factors that the jury thinks are relevant can be considered without having to meet any particular burden of proof.

In all three cases, there was one common question, and then a second question that only applied to the Carr brothers’ cases. The first question relates to the jury instructions given at the end of the penalty phase. In Kansas, the jury was instructed that aggravating factors must be proven beyond a reasonable doubt, but given no specific burden of proof for mitigating factors.* All three defendants contended that this was confusing to the jury, and that, because they weren’t specifically told that the ‘beyond a reasonable doubt’ standard did not apply to mitigating factors, the jury may have discounted mitigation evidence. The second question only applied to the Carr brothers, who contended that, because the penalty phase was held jointly (that is, both brothers were tried before the same jury simultaneously), the jury may have punished one brother for the actions of the other.

The Kansas Supreme Court had ruled against the State in all three cases, and the State appealed to SCOTUS. After reading the transcript, I’m not really buying the defendants’ arguments, though, and I don’t think SCOTUS is, either. To deal with the easy issue first: the law prefers joint trials, because it’s efficient and quick (if you have two trials, then you have to call all the witnesses twice, have two judges, two juries, and so on; it literally doubles (or more!) the cost). Because the judge specifically instructed the jury to consider each brother separately, I really don’t see their arguments flying.

The jury instruction case is a little more interesting. While the tone in the transcript was subdued (relatively, anyway), there were definitely a few sparks flying between the justices. Ginsburg, Kagan, Sotomayor, and Breyer were clearly troubled by the jury instructions, while Scalia, Alito, and Kennedy seemed deeply unimpressed. Interestingly, even though the so-called ‘liberal’ justices were clearly not eager to find for the state, they seemed to accept that the defendants didn’t have much of a legal leg to stand on. Early on, Ginsburg tried to swing around to a procedural posture that would prevent SCOTUS from having jurisdiction over the cases, which would mean that the Kansas Supreme Court’s ruling would be the final word in the case.

I will talk about this area of the law in more detail later, because it’s fascinating, but here’s the short version. SCOTUS has jurisdiction over federal, not state, law. The losing party in a case that reaches the highest state court can appeal to the US Supreme Court but *only* if there is an issue of federal, not state, law to decide. Until 1983, SCOTUS was willing to go pretty deep into an analysis of the state court’s ruling to determine if that court was applying state or federal law, but that meant that SCOTUS was hearing a LOT of cases that it didn’t have jurisdiction to decide on, which is a pretty severe waste of money. So, in 1983, SCOTUS decided a case called Michigan v. Long and held, in essence, that it was only going to do a superficial scan of the lower court’s holding, but if it seemed like federal law, it would just *assume* federal law. It would be up to the state courts to clearly state that they were relying on state law if they didn’t want to wind up in federal court.

Ginsburg suggested extremely early on that they might hold that the Kansas Supreme Court had ruled on state, not federal, law, which meant that the KSC’s ruling was untouchable by SCOTUS (remember that the defendants won in the KSC). The problem is, there’s really no possibly way to square that potential ruling with Michigan v. Long. Of course, SCOTUS is free to quietly *ignore* Michigan v. Long, but that’s not really kosher, and intensely unlikely. More likely, but still not very likely, is that they could decide to overturn Michigan v. Long. In reality, though, it seems pretty clear that a large majority of the court is going to overturn the Kansas Supreme Court’s decision.

The big question to always ask, though, is: ‘is this an important decision?’ In honesty... probably not. The facts of this case are pretty unique, so it’s not like a decision that’s going to really affect anything. The important take away, I think, is that this is a preview of how the Court will act in the next 8th Amendment case to come along.

Which, as it turns out, will be in Tuesday’s argument in Hurst v. Florida!

* Following the Carr brothers’ original appeal, Kansas apparently changed their model jury instructions to fix this. 

[lawhorse]

About SCOTUS

For those not in the know, as it were, SCOTUS means Supreme Court of the United States (I have also sometimes seen USSC, but that looks funny).

Anyway. The Supreme Court’s term starts on the first Monday of October each year, and goes until, well, they finish (typically June). There are currently nine members of the Court, but it wasn’t always that way. When SCOTUS was first created in 1789, the Judiciary Act (which fulfilled the promise of the Supreme Court) only allowed for six justices. The first court actually only had five: Chief Justice John Jay, and Associate Justices John Rutledge, William Cushing, James Wilson, and John Blair, Jr. The sixth justice, James Iredell, would join the bench in 1790.

At the start, the Court was not particularly important. In fact, the only case of note in its early years, Chisholm v. Georgia, was almost immediately overturned by the passage of the 11th Amendment (one day I will talk about the 11th Amendment, because I hate it so bad). It wasn’t until Chief Justice John Marshall, who took the bench in 1801, that the court as we see it started to take place. Possibly the most important case in the history of SCOTUS, Marbury v. Madison, was before the Marshall Court (I’ll talk about that case, too, some day).

Of course, the US has a system of checks and balances. SCOTUS has the power to overturn acts by both the legislative and executive branches when those acts violate the Constitution. Congress (and the States) have the power to amend the Constitution, and the President has the power to nominate Supreme Court Justices.* One of the most important checks against SCOTUS is one that’s little known, however, and that’s the power of Congress to amend the Judiciary Act, and thus change the number of justices. It’s happened before (that’s why we have 9 instead of 6), and it’s hard to overstate its importance. The more justices on the court, the more dilute the voting power of any individual justice; not to mention that the President would get to immediately nominate new justices to take the bench.

As the 2015-2016 Term progresses, I will provide updates for cases I think are interesting or important. In the early days of the term, we’re going to mostly see oral arguments, which are sometimes fun to read or listen to, but not hugely predictive. Later on, I’ll go through the Court’s decisions, as they come out (although I should note that the Court actually delivered it’s first decision of the term yesterday, on its first day officially back -- I’ll talk about that case soon).

For the sake of completeness, the current Supreme Court justices are Chief Justice John Roberts, and (in order of seniority) Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Chief Justice Roberts just celebrated his tenth anniversary on the court, which is pretty impressive when you compare him to the first three Chief Justices: John Jay (6 years), John Rutledge (less than 1 year), and Oliver Ellsworth (4 years).

[lawhorse]

What is up with this?

So, for the past few months, I’ve been doing legal commentary on Twitter. Unfortunately, the Law is somewhat, well, complicated, and 140 characters is not conducive to talking about the ins and outs of the Supreme Court. I’ve been *promising* to do a blog-sort-of-thing for a while now, so, well, here we go.

So who am I? I am, actually, a lawyer! I’m admitted to practice in the Great State of New York, and I work, currently, for the government, and grade practice bar exam essays part-time. I also happen to be a furry (sorry, not sorry), and I’ve been a My Little Pony fan since the 80s. I am also a writer of fictions, though you probably haven’t read any of it. Hopefully, that’ll change. I speak English very well, French reasonably well, Italian and Spanish poorly, and I can swear in Welsh. I tend to be wordy.

To answer the question above, this will be where I chat about legal news, old case law, and so on. My focus, of course, will be New York and federal law, but whatever I see that’s interesting I can chat about. And, of course, the ask box is open, so if you wanna ask about a particular case or law, I can talk about that (if I think it’s interesting, too, sorry).

What isn’t this? It’s not legal advice. It would be unethical of me to offer legal advice in this format, and, in any event, my job prohibits me from taking outside legal work. So if you have a legal problem you need help with, I encourage you to find a lawyer in your local jurisdiction and talk to them. Anything I say is just me. Nothing said here creates a client-attorney relationship with anyone, nor is it intended to.