Feb 20, 2013

In Re Friendzone (Scalia, J., concurring)


As an originalist, even I can see the implications of marriage in our era have changed from when marriage meant someone was strictly “off-limits.” Many marriages today end in divorce, especially marriages where one or both members has a stressful career, like serving on the highest court in the land or being a tax law expert. Under these circumstances, engaging in outings with a member of the opposite sex, such as a romantic evenings at the opera, would cause a rational observer to expect the relationship to progress in a romantic way notwithstanding any spousal complications.

Similarly, many relationships today start in the workplace, especially amongst busy professionals, so the fact that two members of the opposite sex happen to work together cannot defeat the presumption that heterosexual hanging out is a preface to dating. In fact, working together can be conducive to romantic compatibility as it indicates shared interests and experiences, e.g. in adjudicating constitutional disputes. Even where the parties may have a somewhat contentious relationships in the workplace—say one represented NOW and the other thinks constitutional rights should be frozen at a time when women were basically property—such pre-relationship disagreement, as romantic comedies tell us, are indicative of the passion and healthy ability disagree that sustain lasting and meaningful relationships.

Courtesy of the Harvard Law Record. AS <3 RBG.

H/T Lots of people on Twitter.

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Feb 20, 2013

Governor of Florida to Accept Obamacare Medicaid Expansion Money

This is huge.

When the history of President Obama’s drive for national health care is written, there are several moments that will be looked back upon as having cemented the law in place. There were “conservative” Democrats Ben Nelson and Bart Stupak dropping their objections to Obamacare to get the legislation across the finish line. There was Chief Justice John Roberts  siding with the Supreme Court’s liberals to uphold the constitutionality of the law. There was President Obama’s reelection victory, which crushed any feasible path to full repeal. On Thursday, Florida Gov. Rick Scott’s delivered yet another blow to opponents to Obamacare by endorsing the law’s Medicaid expansion in his state. Scott’s decision is of both symbolic and substantive importance.

“Your money or your life.”

Update: Some more analysis on this decision:

Scott, like other red-state governors, has come under intense pressure from hospitals. The Florida Hospital Association, which stands to benefit significantly from the expansion, has been lobbying, advertising and polling to try to persuade state officials to expand. Scott, a former hospital executive, has close ties to that community.

But if administration officials are quietly celebrating, the White House is unlikely to gloat too publicly. It has every incentive to continue to urge governors to sign on. The success of its health reform law depends on other states following suit so the law can expand coverage to as many uninsured Americans as possible. In the case of Florida, the administration apparently sweetened the deal by signing off on a Medicaid waiver the state wanted to continue privatizing the program for existing beneficiaries. “They’ve made it as easy as possible,” said Douglas Holtz-Eakin, the president of the conservative American Action Forum. “They need to make the Affordable Care Act work.”

Update 2: More from Michael Cannon:

There is speculation that Scott made a deal with the Obama administration: he would drop his opposition to the Medicaid expansion in exchange for HHS approving Florida’s plan to put its Medicaid enrollees in managed care plans. HHS approved Florida’s plan today. But economists have shown that moving Medicaid enrollees into managed care increases state and federal spending because it lures more people into the program. So it appears that Scott supported ObamaCare’s Medicaid expansion so that the Obama administration would support his.

Scott says he still opposes having Florida create a health insurance Exchange. Then again, he said the same thing about the Medicaid expansion. So in addition to whatever other damage his flip-flop does, he has squandered his credibility as an opponent of ObamaCare.

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Feb 20, 2013

Thomas on writing opinions: “We’re not there to win a literary award”

Justice Thomas revealed some insights into how he writes opinions. Hint: he wants the average non-lawyer to understand.

“I think we do that with the opinions we write,” he said. “We write them in a way that they’re inaccessible to the average person.” With that fascinating segue, he explained the logic behind his writing

What I tell my law clerks is that we write these so that they are accessible to regular people. That doesn’t mean that there’s no law in it. But there are simple ways to put important things in language that’s accessible. As I say to them, the beauty, the genius is not to write a 5 cent idea in a ten dollar sentence. It’s to put a ten dollar idea in a 5 cent sentence.

That’s beauty. That’s editing. That’s writing. 

The editing we do is for clarity and simplicity without losing meaning, and without adding things. You don’t see a lot of double entendres, you don’t see word play and cuteness. We’re not there to win a literary award. We’re there to write opinions that some busy person or somebody at their kitchen table can read and say, “I don’t agree with a word he said, but I understand what he said.”

He went on to recall a legal scholar asking why his opinions are 25% shorter, on average, that opinions by his colleagues. “I said, I think I would say it’s editing,” he said. “Editing, editing, editing. We do a lot of editing, and it’s very aggressive. We eliminate a lot of trivial nonsense. And I do not like cuteness in my opinions. You save that for your own stuff. It is all meat and potatoes.”

Indeed, I don’t know if  a Justice Thomas opinion has ever been nominated for a Green Bag award.

I think Justice Scalia goes out of his way to add the “cuteness.”

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Feb 20, 2013

Alito on the “Original Understanding” and Original “Purpose” of the Prohibition of Double Jeopardy

From Justice Alito’s solo dissent in Evans v. Michigan:

The prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon,” which “prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense.” United States v. Scott, 437 U. S. 82, 87 (1978); see Crist v. Bretz, 437 U. S. 28, 33 (1978). As the Court has previously explained, “the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict.” Smith, 543 U. S., at 466 (emphasis added).1 As a result, the original understanding of the Clause, which is “hardly a matter of dispute,” Scott, supra, at 87, does not compel the Court’s conclusion that a defendant is acquitted for double jeopardy purposes whenever a judge issues a preverdict ruling that the prosecution has failed to prove a nonexistent “element” of the charged offense. Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”).

With this Story-footnote:

1 See also Crist, 437 U. S., at 33 (“The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed . . . the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal—after a complete trial. . . . And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope”); 3 J. Story, Commentaries on the Constitution of the United States §1781, p. 659 (1833) (“The meaning of [the Double Jeopardy Clause] is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict . . . .” (emphasis added)); 2 M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon trial either by verdict or battle”).

Alito also shifts from an original understanding approach, to look at what the “purpose” of the prohibition was.

Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”);Crist, supra, at 33–34, I nonetheless count it significant that the result the Court reaches today finds no support in the relevant common-law analogues that “lie at the core of the area protected by the Double Jeopardy Clause,” see Scott, 437 U. S., at 96. And given how far we have departed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy. See id., at 95–96, 100–101. Yet today’s decision fails to advance the purposes of the Double Jeopardy Clause.

That’s interesting. If the Court is going to ignore original understanding, then at least go with original purpose. But doesn’t that negate the original move towards understanding meaning?

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Feb 20, 2013

Scalia Ponders About The Point of Pointless Government

From arguments in McBurney v. Young:

JUSTICE SCALIA: And besides, do — do you — is it the law that — that the State of Virginia cannot do anything that’s pointless? Only the Federal Government can do stuff that’s pointless? (Laughter.)

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Feb 20, 2013

SCOTUS Denies Cert on Post-McDonald Unanimous Jury Incorporation Case from Louisiana

Oregon and Louisiana are the only two states in the country where a criminal conviction can be obtained from a non-unanimous jury. In Herrera v. Oregon, the Supreme Court had already denied cert on a challenge to that practice in Oregon, post McDonald v. Chicago.

Now, the Court has denied the petition from Louisiana.

Miller v. Louisana presented the question of “Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict?” The Court denied the petition yesterday.

For now, the anomalous Apodaca will stand. As Miller’s petition notes:

Concurring in the judgment in Apodaca, Justice Powell reasoned that even though the Sixth Amendment requires unanimity in federal cases, the Fourteenth Amendment does not demand the same in state cases. But this reasoning cannot be squared with this Court’s recent holding in McDonald that “[t]he relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle”: “incorporated Bill of Rights protections are to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” 130 S. Ct. at 3035, 3048 (internal quotation and citation omitted). . . . This Court should exercise that prerogative now. Stare decisis has limited force in this case and the constitutional right at stake is enormously important.

McDonald’s application to the incorporation of other provisions of the Bill of Rights seems to be at an end.

H/T Christian Science Monitor

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Feb 20, 2013

Congressional Amici in Hobby Lobby Appeal Argue That RFRA Applies to Corporations

The Becket Fund lists many of the briefs here.

The Congressional brief, signed by Senators Orrin G. Hatch, Daniel R. Coats, Thad Cochran, Mike Crapo, Charles Grassley, James M. Inhofe, Mitch McConnell, Pat Roberts, Richard Shelby and Congressmen Lamar Smith and Frank Wolf, the Congressional states that “Congress plainly wrote [the Religious Freedom Restoration Act or “RFRA”] to include corporations[.]” This brief was authored in part by Kevin Walsh, who has written some great posts on this topic.

Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291-92 (W.D. Okla. 2012). Congress could have carved out such a category of unprotected “persons” in RFRA itself or in a later statute, but it did not. And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not.

The brief addresses how the court carved out exceptions for “secular, for-profit corporations.”

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

Even though Congress did not provide for different treatment of for-profit and nonprofit employers in either RFRA or the PPACA, Defendants have created a three-tier categorization of religiously objecting employers and have subjected Plaintiffs to third-class treatment in the lowest tier. This contravenes the design of RFRA. Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances. But rather than attempt to formulate different principles to govern different categories of religious liberty claimants, Congress formulated a single principle and left it to government officials and courts to apply that same principle with sensitivity to different factual circumstances.

Also, the brief wisely provides a reason why striking down the mandate under RFRA would not implicate Title VII (a concern I have heard from others).


In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

The brief does not venture into the First Amendment free exercise component of what I have called “Corporate Prayer.” Indeed, there is not a single citation to the First Amendment in the brief.

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Feb 20, 2013

FantasySCOTUS Went 6-3 This Week, Overall 68% Accuracy for the Term

This week, the Supreme Court dropped nine opinions on us. FantasySCOTUS correctly predicted Chaidez v. US, Gunn v. Minton, Henderson v. U.S., Johnson v. Williams, Florida v. Harris, and FTC. Phoebe Putney Health System. Two of the cases we missed were awfully close. Evans v. Michigan was 47.4/52.63 and Chafin v. Chafin was 51.3/48.7. Bailey v. U.S. was 58.4/41.6, a wider margin, but still was too close to call.

Overall, this term, FantasySCOTUS has predicted 68.4% of the cases correctly. That is about our historical average.


You can view all predictions at the FantasySCOTUS Prediction Tracker.


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Feb 20, 2013

Taleb on the Problems of Big Data

Nassim Taleb, no fan of big data, writes in Wired (of all places!) to highlight some of the shortcomings of putting too much faith in data.

But beyond that, big data means anyone can find fake statistical relationships, since the spurious rises to the surface. This is because in large data sets, large deviations are vastly more attributable to variance (or noise) than to information (or signal). It’s a property of sampling: In real life there is no cherry-picking, but on the researcher’s computer, there is. Large deviations are likely to be bogus.

We used to have protections in place for this kind of thing, but big data makes spurious claims even more tempting. And fewer and fewer papers today have results that replicate: Not only is it hard to get funding for repeat studies, but this kind of research doesn’t make anyone a hero. Despite claims to advance knowledge, you can hardly trust statistically oriented sciences or empirical studies these days.

This is not all bad news though: If such studies cannot be used to confirm, they can be effectively used to debunk — to tell us what’s wrong with a theory, not whether a theory is right.

I am not saying here that there is no information in big data. There is plenty of information. The problem — the central issue — is that the needle comes in an increasingly larger haystack.

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Feb 20, 2013

What happens when prediction markets become too influential?

Nate Silver shrugs?

He said that his statistics are not intended to affect results, which shouldn’t be an issue in most general elections. But he conceded that in races such as last year’s Republican presidential primary, analysis can make a difference.

“The polls can certainly affect elections at times,” Silver said. “I hope people don’t take the forecasts too seriously. You’d rather have an experiment where you record it off from the actual voters, in a sense, but we’ll see. If it gets really weird in 2014, in 2016, then maybe I’ll stop doing it. I don’t want to influence the democratic process in a negative way.”

“I’m [hoping to make] people more informed, I don’t want to affect their motive because they trust the forecasters,” he added.

I have really enjoyed Silver’s new book.

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Feb 20, 2013

Alito in dissent: “The Court’s decision makes no sense.”

Ouch, from Evans v. Michigan.

The Court holds that the Double Jeopardy Clause bars petitioner’s retrial for arson because his attorney managed to convince a judge to terminate petitioner’s first trial prior to verdict on the specious ground that the offense with which he was charged contains an imaginary “element” that the prosecution could not prove. The Court’s decision makes no sense. It is not consistent with the original meaning of the Double Jeopardy Clause; it does not serve the purposes of the prohibition against double jeopardy; and contrary to the Court’s reasoning, the trial judge’s ruling was not an “acquittal,” which our cases have “consistently” defined as a decision that “ ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’” E.g., Smith v. Massachusetts, 543 U. S. 462, 468 (2005) (quoting United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977); emphasis added). For no good reason, the Court deprives the State of Michigan of its right to have one fair opportunity to convict petitioner, and I therefore respectfully dissent.

Spoke like a former U.S. Attorney.

Though, 8 justices joined the majority, so it must’ve made some sense.


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Feb 20, 2013

Justice Thomas Perpetually Dissents on Padilla v. Kentucky

Justice Thomas dissented in Padilla v. Kentucky. In Chaidez v. United States, he wrote that he still thinks it was wrong.

In Padilla v. Kentucky, 559 U. S. 356 (2010), this Court held that the Sixth Amendment requires an attorney for a criminal defendant to apprise his client of the risk of deportation created by a guilty plea. I dissented. The Sixth Amendment provides that “[i]n all criminal prosecutions,” an accused enjoys the right “to have the Assistance of Counsel for his defence.” By its terms, this right extends “to legal advice directly related to defense against prosecution of the charged offense,” and “[t]here is no basis in text or in principle” to expand the reach of this guarantee to guidance concerning the collateral consequences of a guilty plea. Id., at ___ (slip op., at 2–3) (SCALIA, J., dissenting). Today, the Court finds that Padilla announced a new rule of constitutional law and that, under our decision in Teague v. Lane, 489 U. S. 288 (1989), “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Ante, at 15. I continue to believe that Padilla was wrongly decided and that the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning the collateral consequences arising from a guilty plea. I, there- fore, believe that the Teague analysis is unnecessary and thus concur only in the judgment.

Another perpetual dissent from CT.

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Feb 20, 2013

Instant Analysis: Gunn v. Minton

Federal question jurisdiction makes me bizarrely excited. Here is a quick run-down of Gunn v. Minton.

First, I should note that the Court highlighted the dissenting positions of Justices Guzman and Medina, both graduates of the South Texas College of Law, and Justice Don Willettt, a friend of this blog.

Justice Guzman, joined by Justices Medina and Willett, dissented. The dissenting justices would have held that the federal issue was neither substantial nor disputed, and that maintaining the proper balance of responsibility between state and federal courts precluded relegating state legal malpractice claims to federal court.

These judges got it right. Here is the issue as framed by the Chief:

As relevant here, Congress has authorized the federal district courts to exercise original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331, and, more particularly, over “any civil action arising under any Act of Congress relating to patents,” §1338(a). Adhering to the demands of “[l]inguistic consistency,” we have interpreted the phrase “arising under” in both sections identically, applying our §1331 and §1338(a) precedents interchangeably. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 808–809 (1988). For cases falling within the patent-specific arising under jurisdiction of §1338(a), however, Congress has not only provided for federal jurisdiction but also eliminated state jurisdiction, decreeing that “[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents.” §1338(a) (2006 ed., Supp. V).

I still wonder how depriving state courts of federal jurisdiction is constitutional (see lots of posts here).

To determine whether jurisdiction was proper in the Texas courts, therefore, we must determine whether it would have been proper in a federal district court—whether, that is, the case “aris[es] under any Act of Congress relating to patents.”

Roberts lays out the  two ways “a case can “aris[e] under” federal law.” First, American Well Works’ “Creates the cause of action” test. That was Holmes.

Minton’s original patent infringement suit against NASD and NASDAQ, for example, arose under federal law in this manner because it was authorized by 35 U. S. C. §§271, 281.

But the other avenue for arising under in claims that “Find its origin in state” law is quite murky.

But even where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies. Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006). In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first

Roberts turns to Grable, a case that was decided while I was taking CivPro.

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? Grable, 545 U. S., at 314. That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

So here we get a clarification of Grable:

Applying Grable’s inquiry here, it is clear that Minton’s legal malpractice claim does not arise under federal patent law. Indeed, for the reasons we discuss, we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of §1338(a). Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.

Got that? The “unlikely to have the sort of significance for the federal system” is the newest addition to the “arising under” morass.

The Court also opens up the “significance” analysis to look at the federal system as a whole, rather than the particular issues before the Court.

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Curiously, only one citation to Merrell Dow and Smith v. Kansas City Title & Trust (in which Holmes dissented). In contrast, Grable cited Merrell Dow 23 times. I reckon that Stevens opinion is on the wane.

A second illustration of the sort of substantiality we require comes from Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), which Grable described as “[t]he classic example” of a state claim arising under federal law. 545 U. S., at 312. In Smith, the plaintiff argued that the defendant bank could not purchase certain bonds issued by the Federal Government because the Government had acted unconstitutionally in issuing them. 255 U. S., at 198. We held that the case arose under federal law, because the “decision depends upon the determination” of “the constitutional validity of an act of Congress which is directly drawn in question.” Id., at 201. Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government “securities were issued under an unconstitutional law, and hence of no validity.” Ibid.; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 814, n. 12 (1986).

Roberts also has an interesting discussion of how state courts should consider patent cases–hint, check with what federal courts have done/would do.

Nor will allowing state courts to resolve these cases undermine “the development of a uniform body of [patent] law.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989). Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit. See 28 U. S. C. §§1338(a), 1295(a)(1). In resolving the nonhypothetical patent questions those cases present, the federal courts are of course not bound by state court case-within-a-case patent rulings. See Tafflin v. Levitt, 493 U. S. 455, 465 (1990). In any event, the state court case-within-a-case inquiry asks what would have happened in the prior federal proceeding if a particular argument had been made. In answering that question, state courts can be expected to hew closely to the pertinent federal precedents. It is those precedents, after all, that would have applied had the argument been made. Cf. ibid. (“State courts adjudicating civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law”). As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit. If the question arises frequently, it will soon be resolved within the federal system, laying to rest any contrary state court precedent; if it does not arise frequently, it is unlikely to implicate substantial federal interests. The present case is “poles apart from Grable,” in which a state court’s resolution of the federal question “would be controlling in numerous other cases.”

Roberts concludes by saying that the state court’s resolution of the patents will not be binding precedent–they are only used for that one case.

As we recognized a century ago, “[t]he Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U. S. 473, 478 (1912). In this case, although the state courts must answer a question of patent law to resolve Minton’s legal malpractice claim, their answer will have no broader effects. It will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” Grable, supra, at 313. Section 1338(a) does not deprive the state courts of subject matter jurisdiction.

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Feb 20, 2013

SCOTUS Cites Nken v. Holder for first time since SG Confesses Error

In Chafin v. Chafin, Justice Kagan cites the case of Nken v. Holder to discuss the tradition four factors considered in granting a stay.

Courts should apply the four traditional stay factors in considering whether to stay a return order: “‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’” Nken v. Holder, 556 U. S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987)).

You may recall that in Nken, the Solicitor General supplied information to the Court about how ICE handles deportations, that turned out to be false. Following an order from Judge Rakoff, the DOJ confessed error.

My search shows that this is the first time SCOUTS has cited Nken since FCC v. AT&T in 2011.

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Feb 20, 2013

On same day, Cass Sunstein and Sarah Palin Receive Appointments at Harvard University

Palin was appointed a visiting scholar at the Kennedy School of Government. Sunstein was appointed as a University Professor.

I bet Sarah will nudge Cass anytime.

For some reason, I’m reminded of the line from Legally Blonde where Elle Woods gets into Harvard, and says “What, like it’s hard?” It’s funny, when I first saw this movie in July 2001 (I had just finished my junior year in HS), I had no idea what law school was, and couldn’t have told you what a 143 or 179 LSAT meant, or how hard it was to get into Harvard Law School.

(OK, these event happened one day apart, but close enough for the awesome headline).

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