Pendulum: A Brief History of the Supreme Court

pendulumnsFor those less familiar with the U.S. Supreme Court, this brief (and admittedly over-generalized) history of the Court might shed some light on why Republicans are pulling out all the stops to block President Obama’s nomination of Merrick Garland—and on why the upcoming election, not just for the presidency but also for control of the senate, is so historically pivotal. It is no exaggeration to say that 2016 could mark the dawn of a new era.

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Circuit Splits

There’s a split over the significance of parental intent in resolving habitual-residence questions, under the Hague Convention’s protections against international child abduction. See here at p.11 n.3.

Circuits disagree as to whether state or federal law governs a dispute over a post-office lease. See here at p.6.

In determining personal jurisdiction, there’s a split over using the “stream of commerce” or the “stream of commerce plus” approach. See here at p.5.

There’s a split over whether assault is an element of every conviction for resisting arrest. See here at p.12-13.

There’s a split over whether “back pay” is available as an equitable remedy under ERISA, in a claim for retaliation. See here at p.19 n.3.

And the circuits disagree over the compatibility of the FDCPA and the Bankruptcy Code. See here at p.31-32.

 

Fall Speaking Schedule – Updated

September will be busy. I’ll be talking about the Supreme Court’s 2015 & 2016 terms on the following dates, in the following places:

  • Sept 8 @ Texas A&M Law School (Fort Worth)
  • Sept 16 @ Baylor Law School (Waco) & for the Waco-McClennon Bar Association (separately)
  • Sept 22 @ BNM for the DFW Chapter of ACS (RSVP here)
  • Sept 23 @ Belo Mansion (Dallas) for the Dallas Bar Association
  • Sept 26 @ University of Texas School of Law (Austin)

I’ll also be at St. Mary’s Law School (San Antonio) in November (date TBD).

On the topics of legal writing & appellate practice, I’ll be giving a joint presentation (w/ Scott Stolley) about preparing jury charges, at the upcoming Dallas Bench/Bar Conference, Sept 29-Oct 1. And in November I’ll be participating in a panel discussion about reading and writing e-briefs, at the Annual Meeting of the Council of Chief Judges of State Courts of Appeal, in Raleigh, North Carolina.

Why Citations Belong in the Body, Made Simple

This is the law.(FN1) It has been the law since 1992 and is still the law.(FN2) And other courts of appeals agree this is the law.(FN3)

  1. According to a court decision from another jurisdiction.
  2. According to a case from 2001.
  3. In two unpublished decisions from only one other court.

OR

This is the law.(FN1) It has been the law since 1992 and is still the law.(FN2) And other courts of appeals agree this is the law.(FN3)

  1. According to this court.
  2. According to a case decided just two months ago.
  3. In, e.g., three published decisions from three different courts.

Why make your reader hunt for what is often the most important and persuasive part of your argument?

SCOTUS Cases from the Fifth Circuit

circuit_map_in_agency_palette-full-sizeLast term the Supreme Court decided nine cases that arose in the Fifth Circuit. The Fifth Circuit was reversed five times and affirmed twice, and the two remaining cases (on Obama’s immigration plan and on tribal-court jurisdiction) ended in a 4-4 tie. So far, for OT2016, there are only four cases that arose in the Fifth Circuit. Here’s a quick overview of those cases:

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Circuit Splits

In bankruptcy a debtor cannot discharge her liability for obtaining money, property, etc., by fraud, but there is a circuit split over whether the debtor must have personally received the money, property, etc., obtained by fraud. See here at p.21 n.73.

Circuits are splitting over the impact of Johnson and whether sentencing statutes are unconstitutionally vague. See, e.g., here at p.11 n.7.

The courts have split over “the proper way to analyze predominance” in the class-certification inquiry. See here at p.121. (Incidentally, this is a 223-page opinion with 136 numbered paragraphs and 86 footnotes, some of which run over several pages.)

There’s a “budding circuit split” on whether third parties asserting an interest in forfeited assets are denied due process if barred from challenging the validity of the forfeiture. See here at p.16-17.

Apparently there’s a very old split over whether the party seeking to enforce a contractual waiver of a jury trial has the burden to show the waiver was knowing and voluntary. See here at p.5 n.12.

There is disagreement among the circuits about whether Nassar requires plaintiffs claiming retaliation to show but-for causation as part of their prima facie case or, instead, at the third step of the McDonnell Douglas framework to rebut the employer’s legitimate stated reason for the adverse employment action. See here at p.4 n.4.

And there’s a split over whether the ADEA’s broader protections against discrimination preclude suits under § 1983 and the Equal Protection Clause. See here at p.30 n.12.

Why the GOP Should #GoWithGarland, Take 2

New piece posted at The Huffington Post on the Garland nomination:

On MSNBC talking SCOTUS

MSNBCDon’t have a video clip yet, but here’s the transcript of my short segment about the Supreme Court vacancy and the Garland nomination on “All In with Chris Hayes” (MSNBC), 8/9/16:

HAYES: Senate Republicans continue their completely unprecedented obstruction of Supreme Court nominee Merrick Garland. Now, for the 146th day, refusing to even give him a hearing. In the short-term, seems like there`s nothing the Democrats can do about it. But, here is the thing, as another poll shows Trump down by double-digits nationally, Republicans could not only be facing another Democrat in the Oval Office, but could also lose control of the senate.

Then it gets interesting, because the Senate GOP could end up with a nominee they like even less than Garland, something Republican Susan Collins suggested on this network today.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS, (R) MAINE: That`s the very interesting scenario that I have raised with my colleagues in the senate. And that is that they may be hoisted on their own petard here. If Hillary is elected, I believe that she is much more likely to nominate someone who is to the left of Merrick Garland, because I believe that President Obama deliberately and wisely, in my view, chose someone who was a centrist.

(END VIDEO CLIP)

HAYES: Joining me now, Jason Steed, an appellate attorney, who has argued before the Supreme Court, contributor at Huffington Post. And Jason, you have been tweeting about the scenarios by which this all might play out. So, my sense always is the Republicans want two bites of the apple. Their plan is, block Merrick Garland now. If Clinton wins, rush to confirm him, because he`s the best they`ll get in the lame duck. How do you upset that?

JASON STEED, APPELLATE ATTORNEY: How do the Democrats upset that?

HAYES: Yeah, if the Democrats want to prevent that from happening?

STEED: Yeah, I think the best way to upset that is if there`s a credible threat of Garland`s nomination being withdrawn. So if the morning after the election, we have President Clinton who has been elected and a Democratic senate majority and there`s a real threat they could withdraw – that President Obama could withdraw Garland`s nomination, then I think the Republicans are under pressure to try to confirm him before the election.

If that seems like that`s a really scenario…

HAYES: Right. So the key is that the White House or the Clinton campaign or Democrats have to be sending some sort of back-channel message publicly or privately to Republicans on the Hill, saying, you only get one bite of the apple. You don`t confirm him, we`re withdrawing him. Hillary Clinton is going will find a 25-year-old to put on the court for the next 70 years.

STEED: Right, a 25-year-old version of Pam [Karlan]* or something like that.

HAYES: Right, right.

STEED: So, I mean, I think – the fact that Garland`s name wasn`t mentioned at the Democratic National Convention the entire week…

HAYES: Oh, that`s a good point.

STEED: Yeah, I mean, I think that President Obama`s been pushing him a little bit, but not a lot lately. And certainly Tim Kaine left open the possibility that Hillary Clinton might not nominate him. He endorsed his nomination, but didn`t really say 100 percent that she, for sure, would renominate him, if she was elected. So, I mean, I think the door is open. And if the threat is real and it looks like they`ll lose the Senate, really all President Obama has to say, is look, you guys wanted the voters to decide who is going to fill the seat. They`ve decided. So I`m going to let the new President Clinton control the seat.

HAYES: That`s right. They are hoisted by their own petard there, because that has been the argument, which is we need to have the people weigh in. And if they weigh in, it makes no sense to carry over to the lame duck the person the previous president – I mean, you can`t make both arguments simultaneously in good faith.

STEED: Right. And Senator McConnell has said no doubt about it, they will not confirm President Obama`s nominee. So they`ve really sort of opened the door themselves to the possibility that he won`t be the guy.

HAYES: This is going to be fascinating. We`re going to track this as we bear down the stretch. Jason Steed, Thank you.

* Pam Karlan is a professor at Stanford Law School, a favorite candidate for the Supreme Court among many left-leaning legal folks but typically considered too far-left to be confirmed (as long as the filibuster is still available). The MSNBC transcript misspells Karlan’s name as “Carlin,” so I’ve corrected the spelling here.

Circuit Splits

There’s a split over whether the “innocent landowner” defense applies to former as well as current facility owners, in an action brought under CERCLA. See here at p.14 n.5.

There’s a split over whether state or federal law determines the validity of a forum-selection clause (before deciding its enforceability). See here at p.5.

Circuits disagree over whether a retaliation plaintiff must show evidence of but-for causation at the prima-facie stage of the McDonnell Douglas framework when substantial time has elapsed between the plaintiff’s protected activity and the resultant adverse employment action. See here at p.26-27 n.7.

There’s a split over whether a public entity (such as a county or city) can be liable under § 1985 for a conspiracy carried out by or with its employees. See here at p.9.

Courts disagree over whether ERISA allows a court to require a defendant who breached his fiduciary duty to ESOP participants to indemnify his cofiduciaries. See here at p.3.

Courts also disagree over whether a defendant charged with aiding and abetting a felon in possession must know the principal was a felon. See here at p.12 n.6.

And there’s a split over whether a district court, when reviewing an ALJ’s decision on Social Security benefits, can consider new evidence submitted to the Appeals Council after the ALJ’s decision was made. See here at p.5 n.3.

How Garland Gets Confirmed Before the Election

I haven’t checked the transcripts or anything, but I’m pretty sure President Obama’s pending Supreme Court nominee, Merrick Garland, was never mentioned at this week’s Democratic National Convention. Garland’s nomination has now been pending 135 days—longer than any Supreme Court nomination in history. And this is due to all-out, unprecedented obstruction by the Republicans. So it’s a little odd that the Democrats never mentioned Garland during their convention, and never used the Republicans’ obstructionism as a punching bag. Why wouldn’t they use the DNC stage to hit the Republicans hard on this?

I have a theory. Some people might say the Supreme Court just isn’t that important to Democratic voters; some might say too much talk about Garland or the Court would’ve reminded Republican-leaning voters who don’t want to vote for Trump of the only defensible reason to do so. But I think there might be something else going on—something more subtle and strategic.

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