Finally

The Supreme Court is finally getting around to deciding some of the more important cases of the Term (Monday's decisions were too boring to mention), and today it came out with the New Process Steel case and determined the fate of hundreds of NLRB decisions.

The question was, can the National Labor Relations Board operate with just two members? The normal membership of the Board is five members, and a quorom is normally three. So you might think that the Board couldn't operate with just two.

But, the Board's organic statute allows the Board to delegate its powers to a three-member group, and then provides that a quorom of such a group shall be two. Presumably, the idea here was for the Board to be able to authorize itself to meet in panels of three, the way an appellate court with many judges does routinely. So if the Board authorized a panel of three to consider a case, and then one of the members was disqualified, the remaining two could decide the case.

But the Board faced an unusual situation: toward the end of 2007, the Board was down to four members -- and two of their terms were expiring shortly. It would soon be down to two members, below the quorom of three.

So the Board delegated its powers to three of the members, including one whose term was expiring, and then claimed, when it was down to two members, that those two constituted a quorom of the group of three! The remaining two members thereby decided almost 600 cases, while the President and the Senate squabbled about whom to add to the Board as new members.

By a 5-4 vote, the Supreme Court has now squashed this maneuver. While recognizing that the Board's action rested on a "textually permissible" reading of the organic statute, the Court effectively said that it just couldn't believe that Congress intended the Board to be able to operate with just two members on a long-term basis. The statutory provision for a two-member quorom of a three-member group was for unusual circumstances, not for hundreds of cases over a period of years, the Court believed.

I have to give this one to the dissenters. I expect the Court is right that Congress didn't intend the Board to operate routinely with just two members, but it probably didn't intend the Board to cease functioning either. Congress probably didn't anticipate that the full Board membership would fall to just two members.

The question is how the statute Congress wrote applies to this unforeseen circumstance. The statute permits delegation of the Board's power to any three members and permits two of those three to constitute a quorom. That's what the Board did. As the dissenters observed, the Board's action was "a thoughtful and considerate exercise of its reasonable discretion when it was confronted with two imperfect alternatives."

Not Nuanced Enough

Another interesting tidbit in yesterday's Supreme Court opinion was Justice Scalia's concurrence in Krupski v. Costa Crociere S.P.A. The case involved the interpretation of Federal Rule of Civil Procedure 15. Passing over the details of what the case was actually about, the interesting part is that Justice Scalia objected to the Court's reliance on the Advisory Committee Notes that accompanied the promulgation of the rule.

Now, one might say that this is only to be expected -- after all, Justice Scalia has waged a long-standing war against reliance on legislative history. But really, the Advisory Committee Notes seem quite different from the kind of legislative history to which Justice Scalia typically objects. Typically, legislative history consists of a report drafted by one committee of one house of Congress, or words spoken in debate by a single legislator on the floor of one house of Congress. Justice Scalia rightly points out that such history might not reflect the views of the full Congress, which is the body that can give the law authoritative force (although, as I have explained at length, the legislative history may be understood as "incorporated by reference" into the resulting laws).

But the Advisory Committee Notes are different. They're more like the "official comments" that accompany sections of the U.C.C. They are prepared by the single, non-bicameral body that prepares the text of the rule. The Supreme Court is aware of them as it puts its official imprimatur on the rule and gives the rule force. The process is quite different from the legislative process. The difference in the processes by which laws become laws and by which the Federal Rules become rules should give rise to different attitudes regarding the value of the history in interpreting the resulting texts. I think Justice Scalia is being inappropriately mechanical in carrying over his legislative history fight into this different arena.

Court Uses Math!

Today's opinion in Barber v. Thomas poses a math problem as well as an interpretive problem. Federal prisoners who behave well in prison are eligible to receive "good time" credits toward service of their sentence. But when exactly should they be released?

The relevant statute says that a prisoner serving a term of more than one year may receive a credit "of up to 54 days at the end of each year of the prisoner’s term of imprisonment," and that "credit for the last year or portion of a year of the term of imprisonment shall be prorated." So if a prisoner is receiving prorated credit while serving the last year of his sentence, how do you calculate the release date?

The appendix to the Supreme Court's opinion actually contains algebra! Having concluded that the provision for prorated credit means that the prisoner should continue to earn credit at the rate of 54 days per 365 days served, the Court works out the necessary equations. I would do it this way: assuming a sentence of y years, let x be the number of days the prisoner actually needs to serve. Then we have:

x + (54/365) x = y.

So, (419/365) x = y.

And therefore, x = (365/419) y, which is about .871y. So for a 10-year sentence, a prisoner who got maximum good-time credits would have to serve .871 * (10 *365) = 3179 days, or 8 years 260 days. The Court did it a little differently but got to the same result.

Cool to see some actual math, even easy math, in a Supreme Court opinion.

But is this the lawful method of calculating credit? That was the interpretive question. The prisoners wanted slighlty more credit, and the dissent argued that a prisoner's credit for each year should shorten the next "year" for which the prisoner could earn credit. Thus, if a prisoner earned 54 days of credit in his first year, that would be credited against his next 365-day year, so he could earn another 54 days of credit in the next 311 days.

I think the Court's opinion makes more sense. The statute provides for up to 54 days of credit "at the end of each year of the prisoner’s term of imprisonment." That sounds like the prisoner must serve 365 days, not 311, to earn 54 days of credit.

You Have the Right

Sorry for the lack of recent content, faithful readers. I was on vacation last week.

The Supreme Court ruled yesterday that a suspect given the Miranda warnings, particularly the warning, "you have the right to remain silent," must invoke that right in order for it to be effective. Answering questions after being given the warnings will be taken as a waiver of the right to remain silent, notwithstanding the statement in Miranda that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." It seems that an arrested suspect must say "I invoke my right to remain silent" -- and "invoke" has to be in italics, I'm guessing -- or the police can just keep questioning the suspect until he breaks down and says something incriminating.

Others have covered the susbstance of the decision, but here's a word about the procedure that may have escaped attention: the case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.

Of course, the judges who complain most vociferously when courts allegedly "reach out" to decide questions unnecessarily, or at the behest of parties who supposedly lack standing, or who in some other way aren't presenting the question in a perfectly justiciable posture, are usually the very same ones who produced yesterday's opinion. In the landmark case of Teague v. Lane, for example, Justices Scalia and Kennedy (the other conservatives weren't on the Court yet) joined an opinion explaining that because new rules don't normally apply retroactively in habeas cases, courts asked to articulate a new rule can't even consider the question unless they first decide that the new rule would, exceptionally, apply retroactively, because otherwise they would be announcing an advisory opinion.

So, as usual, judges just can't make up their minds whether they want to be strict or loose in these procedural matters. If I were cynical, I'd say they like to be loose when that allows them to reach a result they favor, and strict when it allows them to avoid reaching a result they wouldn't like. Good thing I'm not cynical!

LWOP

Having covered the truly significant decision in yesterday's post, let's get to the flashier but not really as important decision in Graham v. Florida. The Supreme Court held that it is unconstitutional "cruel and unusual" punishment to sentence a juvenile offender to life without parole ("LWOP") for a crime not involving a homicide.

I don't really have strong feelings about the decision -- although I think I might have joined the second part of the Chief Justice's opinion, which concluded that LWOP was an unconstitutionally disproportionate sentence for the crime involved in the particular case before the Court, without deciding whether such a sentence could never be appropriate for any juvenile convicted of a nonhomicide offense, no matter how horrible and depraved that offense might be.

What interests me about the decision, though, is this: Justice Thomas, joined by Justice Scalia, expressed the view that there is no proportionality requirement whatever in the Eighth Amendment's Cruel and Unusual Punishment Clause. That clause, they believe, prohibits torturous methods of punishment, but has no application to the question of whether a punishment that might be permissible for some crime is too severe for some other crime. The Court majority, on the other hand, stated that "[t]he concept of proportionality is central to the Eighth Amendment." How can five Justices think something is "central" to the Amendment and two Justices think it not involved at all?

As is often the case, part of the answer comes down to textualism versus other interpretive methods. Justices Thomas and Scalia, in my view, put too much weight on textualism in this question. The Eighth Amendment's single sentence provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is true that the text does not expressly impose a proportionality requirement on prison sentences. But it does prohibit excessive fines. Can anyone possibly explain why the Constitution would provide that society cannot impose a fine on a criminal that is disproportionate to the criminal's offense, but could impose a disproportionate prison sentence?

I'm sorry, but it just doesn't make sense. One can understand how the Framers might have neglected to specify that prison sentences shall not be excessive, because, as Justice Thomas himself notes, prison sentences were not a common punishment in the eighteenth century -- criminals were punished by fines, whipping, or shaming, or, if that was not sufficient, then by death. But it is hard to understand how anyone could want to prohibit excessive fines but not excessive prison sentences, and the appropriate solution is to subsume the excessiveness requirement in the prohibition on cruel and unusual punishment.

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

Still No Bilski

Another sitting of the Supreme Court has come and gone, and the Court still hasn't decided In re Bilski, which promises to be a big deal in patent law. I was teaching Intellectual Property this term, and I kept putting off teaching patentable subject matter in the hopes that the Court would decide the case, but no such luck.

The case will give us some insight into the longstanding problem of the degree to which patents are available for processes that lie outside the area of traditional industrial, manufacturing processes. A "process" is specifically listed as patentable under section 101 of the patent act, and everyone agrees that a process for vulcanizing rubber, for example, is patentable, but the courts have tied themselves up in knot over more abstract processes, particularly those that involve something like a mathematical algorithm. The Supreme Court started things off by denying patentability for a process for converting numbers from one number system to another and ever since then things have been rather confused.

The Federal Circuit, created to fix up patent law, took great liberties in this area and seems to have regarded itself as authorized to ignore Supreme Court precedent. The Supreme Court gave the Federal Circuit a great deal of leeway for a while -- perhaps to let the experiment work -- but lately has been reining it in almost every Term. Now this case could be another big deal in patents.

Personally, I think mathematicians get unfairly shafted in the subject matter area. Math was my undergraduate major, so perhaps I am biased, but why should achievements in mathematics be less rewarded than those in physics or chemistry? If I invented a fast algorithm for factoring large numbers, for example, it would be extremely important -- all of encryption, as I understand it, is based on the fact that it's easy to multiply two numbers together but hard to break a large number into its factors. A factoring algorithm would be a useful and important achievement, and it's not clear to me why it shouldn't be patentable.

I think I would allow more leeway in subject matter but tighten up in obviousness. A lot of the controversial subject matter patents should clearly have gone down on the obviousness criterion. Mr. Bilski, for example, is basically saying, "I've invented hedging!," which is ridiculous. See also In re Comiskey ("I've invented arbitration!"). Let's give mathematicians their due, but only if they come up with something really new.

Big Blow to Net Neutrality

A big court decision yesterday from the U.S. Court of Appeals in DC -- the court held that the FCC lacks authority to require an Internet service provider to allow consumers to access any lawful content of their choice.

The problem is that the Communications Act doesn't expressly give the FCC the power to regulate Internet service. Even the FCC admits that. Therefore, to justify its rule, the Commission has to rely on its general power to "make such rules and regulations, and issue such orders, not inconsistent with [the Communications Act], as may be necessary in the execution of its functions."

That's obviously a pretty broad and general power. The Commission would like to be able to use it to justify anything, but the courts, sensing some need to rein it in a bit, have determined that it applies only to regulations that are "reasonably ancillary" to the Commission's effective performance of its statutorily mandated responsibilities. And, the court held, that standard wasn't met here. An order requiring net neutrality may further some of the underlying policies of the Communications Act (for example, the Act says that it exists to help make available a "rapid" and "efficient" nationwide wire communication service), but that's different, the court said, from furthering actual statutory powers given to the Commission by the Act.

This is a big deal. It would appear, as of today, that ISPs are free to charge different prices based on the kind of content users want to access and to discriminate against certain kinds of content that they think take up too much bandwith -- peer-to-peer file sharing applications, for example. If we want mandatory net neutrality, it looks like we'll have to get it from Congress.

Do States Have Standing?

Now that 14 states have sued to block the new health care law, the next question in the continuing federalist battle over this issue is whether the states have "standing" to sue. Under federal law, you can't challenge a law in court just because you don't like it; you have to show that the law injures you in some way. Do states satisfy this standard with respect to the new health care law?

First off, this question is a good illustration of why the rules of standing law are so often silly. As I have explained at length, standing doctrine doesn't serve much discernible purpose. The new health care law, and particularly its individual health insurance mandate, are obviously going to be challenged at some point, and courts will resolve the issue of the mandate's constitutionality. States would make excellent plaintiffs to bring these challenges -- they will have good lawyers and make all the arguments against the new law's constitutionality. And an important part of the case is whether the states or the federal government should be regulating health insurance. So what do we care whether the states are "injured" in some legal sense? Is there any actual value to waiting until suit is brought by some individual who has to pay the tax penalty for not having health insurance (and who would therefore clearly have standing to challenge it)? The courts are going to resolve this law's constitutionality one way or another, and it's hard to see what difference it makes who the plaintiff is.

Having said that, there is some real doubt as to whether the states have standing to challenge the health insurance mandate. The mandate applies to individuals, not to states. According to the states' complaint, many other parts of the act affect states directly, but it's not clear how the mandate does. So the direct injury could well be lacking. And that's not to mention that the mandate doesn't even kick in until 2014, making the suit somewhat premature.

States might try to assert standing under the parens patriae doctrine, under which governments can assert the rights of their citizens. But the Supreme Court declared long ago in Massachusetts v. Mellon that the states cannot use this doctrine to sue the United States. The Court said, "It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof." That's exactly what the states are trying to do with the present lawsuit, so it seems to be forbidden. For the same reason, it seems doubtful that a state passage of a law purporting to declare that citizens of that state don't have to buy health insurance if they don't want to makes any difference to the state's standing -- that's just more of the same.

On the other hand, in the recent case of Massachusetts v. EPA the Supreme Court took a more generous view and said that states were entitled to "special solicitude in our standing analysis." The standing of Massachusetts in that case was based primarily on its ownership of affected land (which might have been swamped by ocean level rises caused by global warming), but the Court included a footnote giving a narrow reading to Massachusetts v. Mellon and hinting that states could have standing to assert "quasi sovereign interests." The same footnote also, however, reiterates that states cannot sue to protect their citizens from the operation of federal statutes.

So while one hesitates to be dogmatic, and while there are cases that could be cited on both sides, the claim of the states to have standing to challenge the health care mandate seems doubtful. If it were up to me, I would say, let them go ahead, we might as well get these issues resolved now as later, but the courts may require us to wait until an individual with clearer standing brings suit.

Fantasy Prisoners

The Seventh Circuit has upheld a prison's decision to ban the game "Dungeons and Dragons" among inmates. The prison adopted a rule against the game because it "promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”

Sheesh. As Ilya Somin points out over at the Volokh Conspiracy, The Count of Monte Cristo could give rise to escape behaviors. Football encourages organized, competitive hostility.

Without necessarily disagreeing with the court's decision that there is no constitutional right to play Dungeons and Dragons in prison, I would have to say that this prison rule seems over the top and also seems to be a continuation of standard, unverified cliches about the dangers of this form of game. I haven't played D&D for decades, but I used to play when I was in high school and certainly my group never had any difficulties confusing the advisability of fantasy violence with that of real violence.

Of all things, the prison said it was concerned about D&D, not just because of the fantasy violence involved, but because the game involves cooperative behavior: the prison was concerned "about cooperative activity among inmates, particularly that carried out in an organized, hierarchical fashion." Such organized, cooperative activity can be the basis of forming a prison gang, the prison officials said.

My goodness, what if one of the prisoners organizes a book group and instructs the members on which book to read for the next meeting? Does the prison forbid that?

Maybe it does, but I doubt it.

Falsely Accused

Faithful readers, the new term has started (on January 4!), but I am still finishing up my grades from last term, so expect minimal blogging for a while longer.

For today, though, let's consider the now-dismissed Supreme Court case of Pottawattamie County v. McGhee. The plaintiffs, some 20 years ago, were convicted of murder, apparently on the basis of false testimony deliberately procured by prosecutors. They brought suit claiming that deliberately procuring false testimony violates their constitutional rights. The case turns on complicated issues of prosecutorial immunity -- sometimes, the law lets prosecutors off even when they do something awful and wrong, because otherwise prosecutors would spend their whole life getting sued -- but among other things, the prosecutors have claimed that there is no constitutional right not to be framed.

The case has been settled, so we won't find out the answer soon, but sheesh, of course there's a constitutional right not to be framed. The Supreme Court decided over 40 years ago, in Brady v. Maryland, that prosecutors have a constitutional duty to turn over exculpatory evidence to the defense. If prosecutors have framed the defendant by deliberately procuring false testimony against him, they have exculpatory evidence in their possession that they have not turned over -- namely, the fact that they have framed the defendant by deliberately procuring false testimony against him. So framing a defendant necessarily violates his constitutional rights under Brady.

Thank you. Next case.

Come Back Later

Interesting opinion today from the Supreme Court. Apart from being Justice Sotomayor's first opinion, the case presents the interesting question of whether a district court's order denying a claim of attorney-client privilege should be immediately appealable.

The normal rule in federal litigation is the final judgment rule: no appeal of a district court's order is allowed until the case reaches its final judgment, at which time all the orders the district court has made in the course of the case can be appealed. This rule saves time and energy by blocking parties from appealing each order the district court makes, one at a time. Also, if the party that would have appealed an order ends up winning the case anyway, or if the case settles, appeal may be unnecessary. So the final judgment rule is a good general rule.

But sometimes appeal after final judgment may not do anything for the appellant. For example, if the defendant in a criminal case seeks bail pending trial and is denied, an appeal after the trial is over does no good -- the harm of not getting bail is irreversible at that point. So the Supreme Court has allowed appeal of "collateral" orders -- orders that are collateral to the merits of a case, that raise an important issue, and that are not effectively remediable by appeal of the final judgment.

So why doesn't the denial of a privilege claim fall in that category? After all, if a party is made to reveal a privileged communication, the communication can't be unrevealed by an appellate reversal years later. The party needs appellate review before revealing the communication.

The Supreme Court's almost-unanimous opinion focuses more on the need to avoid too many piecemeal appeals than on the strict logic of the collateral order doctrine. The Court said that the attorney-client privilege, considered as a whole, can be protected sufficiently by appeal, even if the privilege is wrongly lost in some individual cases. That will be cold comfort to litigants whose privilege is wrongly denied by district courts.

The Court's opinion perhaps makes good policy sense, but it reveals some weaknesses in the official statement of the collateral order doctrine.

That Holiday Spirit

With the holiday season officially kicking off tomorrow, an interesting decision arrives from the Third Circuit. The question: can a school district adopt a policy forbidding religious music in holiday celebrations, including school concerts?

The South Orange-Maplewood school district in New Jersey adopted such a policy in an effort to achieve religious neutrality. After receiving a complaint from a concerned parent following a holiday concert that included traditional Christmas carols, the district's Director of Fine Arts indicated that schools should avoid music representing any religious holiday of any faith and suggested instead secular seasonal selections of the "Frosty the Snowman" type. Needless to say, this decision raised concerns with different parents, who brought a lawsuit.

Although these kinds of issues have become excessively polarizing, this case has a fairly straightfoward answer, which all the judges (including appointees of Presidents Carter, Clinton, and G.W. Bush) reached. Although the court was handicapped by having to apply the somewhat tangled official doctrines surrounding Establishment Clause issues, the decision follows from pretty basic distinctions.

A school's decision not to have its students present religious music in the holiday concert is different from the decision to have the students sing such music. The school district can hardly be obliged to present religious music in school. If the school district's policy violated the Constitution, it would follow that an individual school's similar decision would too, with the impossible result that every school's choral director would be legally required to present Christmas music in the school concert, not to mention music requested by other religions represented among the school's families.

Of course no one is trampling on a parent's right to have their children exposed to religious holiday music -- and children will get ample such exposure. Just not in the South Orange-Maplewood schools. Just because you have a right to teach your children something doesn't mean you have a right to have the school teach that same thing, if it doesn't want to.

Sigh. I remember my high school holiday concerts fondly, with I and the other Jewish kids cheerfully singing Christmas songs and not worrying about it. The South Orange-Maplewood policy does seem unnecessarily churlish. But it's constitutional.

Iqbal Keeps Spreading

I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation. Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all. It’s still too early to say definitively who’s right, but take a look at this – Iqbal applied to a slip-and-fall case!

For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure. The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about. It didn’t have to go into specifics or detail. If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim. The plaintiff doesn’t have to say how she knows what the defendant’s motives were. Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint. That’s what discovery is for.

Iqbal throws the rules into confusion. Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response. Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support. Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.

Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case! Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery?

This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.

As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint. We’re going to waste a lot of time polishing the pleadings. And apart from everything else, it’s going to cause years of confusion. Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient. Now I have no idea. If people can’t even get a slip-and-fall case into court, we’re in trouble.

Ravitch Redux

I previously expressed the view that a New York state statute appeared to give Governor David Patterson the authority he needed to appoint Richard Ravitch to the vacant post of Lieutenant Governor. Now an intermediate state court of appeals in New York has disagreed with me.

Fortunately, I was cautious enough in my previous posting to note that I was just parsing the one statutory provision upon which Governor Patterson was relying and to include the caveat that "to be confident, one would need to scour all of NY's constitution and laws to see if there are other provisions that bear on the issue." Often, the essence of being a legal expert is just having read the rulebook thoroughly, so that you know that even though Rule 5 says one thing, Rule 29-B says that something else shall happen in certain cases "notwithstanding Rule 5." There's no great brilliance involved; it's just a matter of being so thoroughly versed in the rules that you know about all the little notwithstandings and howevers.

In this case, having read the court of appeals' opinion, I think they got it right. What the court discovered (with the assistance of counsel, of course), is that there is another provision of New York law that has to be considered.

Governor Patterson relied on the New York Public Officers Law, section 43 of which provides that "If a vacancy shall occur, otherwise than by expiration of term,with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." That seemed to apply, because a vacancy had occurred in the office of Lieutenant Governonr, other than by expiration of term, and there was no provision of law for filling the same. So it looked OK.

But, the court points out, first of all, strictly speaking, the statute does not provide that the Governor can appoint someone to fill the office, but only that he can appoint a person to execute the duties of the office until the office shall be filled by election. That might seem like a distinction without a difference, but -- and this is the crucial point -- the court also observed that the NY state constitution (article IV, section 6) provides that, in the case of a vacancy in the office of Lieutenant Governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy."

Now we have a conflict. The court correctly points out that it could hardly be intended that the temporary president of the senate would "perform" the duties of the Lieutenant Governor but that the Governor would appoint someone else to "execute" the duties of the Lieutenant Governor. Thus, the general statutory provision that the Governor decides who gets to execute the duties of otherwise unprovided-for vacant positions conflicts with the specific provision in the NY constitution that the temporary president of the Senate peforms the duties of the office when the vacancy is specifically in the office of Lieutenant Governor.

Not only do more specific provisions usually control over more general ones, but here the more specific provision is constitutional and the more general one is only statutory. Thus, for two reasons, it seems right to say that the provision giving the duties to the temporary president of the NY Senate prevails over the provision allowing the Governor to name someone to execute the duties.

So I'm officially changing my view. I think the court got the case right.

Iqbal's Children

It didn't take long for the lower courts to start realizing the far-reaching implications of the Supreme Court's decision in Ashcroft v. Iqbal. The case didn't grab a lot of public attention -- it's about rules of pleading, which hardly make headlines -- although Adam Liptak had a good piece about it in the Times a couple of weeks ago. Yet this case is going to reverberate throughout the federal system and cause real change in litigation.

As I previously explained, the Iqbal decision reverses the longstanding principle that a plaintiff in a federal civil case need only provide a general notice of what the case is about in the complaint. Now, under Iqbal, the plaintiff is obliged to plead sufficient facts to convince the trial judge that the plaintiff's claim is "plausible." This fuzzy standard gives considerable discretion to trial judges to throw out cases they don't like. It also means that we're going to back to the old days when no one really knew what had to be in the complaint. Prior to Iqbal, I felt pretty confident that I could tell you whether a complaint was sufficient or not. Now I have no idea. We could easily spend the next 10 or 20 years figuring it out, which will mean endless amounts of time wasted on pleading battles.

This recent decision from an Ohio district court seems like a fair representation of the likely future. The plaintiff took an anti-convulsant drug called Trileptal manufactured by Novartis and subsequently suffered multiple complications including "multi-organ hypersensitivity." She sued Novartis. In her complaint, she alleged that the defendant's product was defective in design and that it caused her injuries. Those allegations would have been plainly sufficient under the old standards. But the judge dismissed the claim on the ground that the plaintiff had not pleaded enough facts to make the claim plausible. Instead, the court said, the plaintiff had "done nothing more than provide a formulaic recitation of the elements of a claim under the statute."

Sheesh. Under the old rules, a formulaic recitation of the elements of a claim was often the best way to plead something. You made a defective drug, I took it, it injured me. What more should you have to say to start a case? Do you need to know exactly how the drug was defective? Do you need to know the exact causal mechanism of the injury? And how exactly are you supposed to get this information? You can't just politely ask the defendant to open up its factory. That's why we have discovery -- to allow parties to get information out of their opponents that wont' be given up voluntarily.

Under the new regime, it seems like you have to have a whole lot of information that you can't realistically be expected to have before you start your case. If I take a drug and my liver fails the next day, I should at least have some mechanism available to get at the information that would allow me to determine whether the two events are related. If I can't sue, I can't employ discovery, and the drug manufacturer isn't going to be opening up its files just for the asking, that's for sure.

It looks like Iqbal is going to have a big impact. I can't actually guarantee that it won't be a good impact on balance -- that's an empirical question, and it's theoretically possible that the benefits (fewer settlements coerced by unworthy litigation, for example) will outweigh the costs. But I doubt it. We need better litigation procedures, but locking the courthouse doors based on information asymmetries doesn't seem like a good place to start.

Notable Sleeper

Lots of big legal news yesterday: an important Supreme Court decision about employment discrimination, and Bernie Madoff getting 150 years for his fraudulent Ponzi scheme. But perhaps most important of all is the short, easily missed Supreme Court order in Citizens United v. Federal Election Commission. The order sets the case for reargument and asks the parties to address the question, "For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?"

When the Court asks parties to tell it whether it should overrule a previous case, it's usually already decided to do so. In McConnell, Justice O'Connor joined a 5-Justice opinion upholding section 203; Justice Kennedy dissented. With Justice O'Connor replaced by Justice Alito and the vote of swing Justice Kennedy already known, it's not looking good for section 203.

Section 203 prohibits corporations and labor unions from using their general treasury money to fund electioneering communications. Look out for this section to be declared unconstitutional this fall. After that, stand out of the way of the tidal wave of corporate and union money that will flood election campaigns.

Calling the Eighth Amendment

Music downloaders, beware: a jury has determined that a 32-year-old Minnesota woman violated the copyrights on 24 songs owned by four major record labels, and it returned a verdict for the labels in the amount of $1.92 million. That's about $80,000 per illegallly downloaded song. That's even though each downloaded song could have been purchased legally for $1.

The copyright statute authorizes "statutory damages" (i.e., damages that may be unrelated to a plaintiff's actual damages) in any amount between $750 and $30,000 per copyright violated that the court considers just, and in cases where the violation was wilful, the amount may be increased to up to $150,000. So the amount, incredible as it is, is within the statutory limits (wilfulness was apparently proved). The statute does make it seem as though the court, not the jury, sets statutory damages, so I'm a little surprised that the jury is involved here, but I'm not really familiar with the practice on this point.

In any event, even allowing for the need to impose a penalty that goes beyond the actual damages suffered and that will provide an appropriate deterrent to illegal behavior, clearly this verdict is ridiculous. Indeed, off the top of my head I'd be inclined to say that it's a case for application of the Eighth Amendment, which prohibits the imposition of "excessive fines." The Supreme Court has held that this amendment does not apply to damages in a civil suit between private parties, but it has constrained punitive damages using the Due Process Clause, and here statutory damages are serving a similar function.

But first I would apply the statutory copyright provision that the statutory damages should be such damages "as the court considers just." The defendant is liable for more than $24 and should pay an amount that would appropriately deter illegal music downloading. But I think about $10,000 or $15,000 would amply serve that purpose (defendants have apparently been settling for $3,000-5,000, so the fine imposed after trial needs to be more than that). $1.9 million is absurd.

Update: A little research (actually I asked a colleague, but that's part of research!) reveals that in 1998 the Supreme Court held that the Seventh Amendment right of jury trial includes the right to have the jury determine the amount of statutory damages in copyright cases. So that's why a jury verdict was involved. But presumably the court could still apply any constitutional constraint on the amount of damages awarded.

'Vast There!

Sometimes it's hard to read a judicial opinion without hearing people cry "Hard-a-port! Man the Scuppers!" in the background. Today's opinion in Polar Tankers, Inc. v. City of Valdez, Alaska fits the bill, as the Supreme Court struck down a city tax because it violated the Constitution's Duty of Tonnage Clause.

The what? That's right, Article I, section 10, clause 3 of the Constitution provides that "No State shall, without the Consent of Congress, lay any Duty of Tonnage." You missed that in your Constitutional Law class? Frankly, so did I, but remember that in the Framers' day shipping and maritime matters were vital.

The City of Valdez imposed a personal property tax on large ships that traveled to and from the city -- with exemptions that effectively limited the tax to oil tankers. Ah, but our Framers had anticipated taxes like this. They didn't want coastal states to take advantage of their favored geographical position by imposing taxes that would burden inland states. So, even though a "duty of tonnage" is literally only a tax on the cubic capacity of a ship, the Supreme Court has struck down "all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port." Valdez's tax was, effectively, a charge for the use of its ports, so it got struck down.

Our eighteenth century ancestors still rule us today. And they cry "Hard-a-port!" as they do.

Supreme Bailout

The Supremes did their bit to push along the Chrysler bailout, denying the application for a stay filed by some of the company's secured creditors. Now the planned sale of the company to Fiat can go through and the company can emerge from bankruptcy.

I don't know that much about bankruptcy, but the plan does seem a little radical, inasmuch as it gives -- or at least is said to give -- unsecured creditors a better deal than secured creditors. I don't understand how that can happen. The complaining creditors do seem to have a point.

At the same time, there is one useful indicator of why the Supreme Court might have declined to get involved: the creditors seeking the stay held just $42.5 million of the total of $6.9 billion of Chrysler's secured debt. That's about 2/3 of 1%.

If 99.33% of the secured creditors are satisfied with the plan, there must be something good about it. As I say, I don't know enough bankruptcy law to have a truly informed opinion, but this objective indicator suggests that the plan can't be all that unfair to the secured creditors.