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The opinion is 8-1. Sotomayor for the majority, would affirm the 5th Circuit’s dismissal of the writ.

In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by §2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power toadjudicate Gonzalez’s appeal. We hold that it did not. This Court has endeavored in recent years to “bringsome discipline” to the use of the term “jurisdictional.” Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5). Recognizing our “less than meticulous” use of theterm in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern “a court’sadjudicatory authority,” and nonjurisdictional “claimprocessing rules,” which do not.

Scalia dissents, and would reverse, finding that the 3-judge panel lacked jurisdiction, which would have the effect of dismissing the writ (so it’s not really a dissent).

The obvious, undeniable, purpose of 28 U. S. C. §2253(c) is to spare three-judge courts of appeals the trouble of entertaining (and the prosecution the trouble of defendingagainst) appeals from the denials of relief in habeas and §2255 proceedings, unless a district or circuit judge hasidentified an issue on which the applicant has made asubstantial showing of a constitutional violation. Where no such constitutional issue has been identified, an appealon other, nonconstitutional, issues (such as the statute of limitations issue that the Court decides today) will not lie.
Today’s opinion transforms this into a provision that allows appeal so long as a district or circuit judge, for whatever reason or for no reason at all, approves it. This makes a hash of the statute. The opinion thinks thisalchemy required by the Court’s previously expresseddesire to “‘bring some discipline’ to the use of the term‘jurisdictional,’” ante, at 5 (quoting Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction. I would reverse the judgment below for want of jurisdiction.

It seems Justice Scalia adopted the argument of his former clerk–and my former Prof–Jonathan Mitchell, SG of Texas.

And this:

Its basis for proceeding in this fashion is the remarkablestatement that “[a] defective COA is not equivalent to thelack of any COA.” Ante, at 8. That is simply not true withrespect to a significant defect in a legal document. Would one say that a deed which lacks the words of conveyance is not equivalent to the lack of a deed? Or that a passportwhich lacks the Secretary of State’s affirmance of the bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defectthat goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-ofappealability procedure is to make sure that, before a casecan proceed to the court of appeals, a judge has made the determination that it presents a substantial showing of the denial of a constitutional right. To call something avalid certificate of appealability which does not contain the central finding that is the whole purpose of a certificate of appealability is quite absurd. . . .

What began as an effort to “‘bring some discipline’ to theuse of the term ‘jurisdictional,’” ante, at 5 (quoting Henderson, 562 U. S., at ___ (slip op., at 5)), shows signs of becoming a libertine, liberating romp through our established jurisprudence.

Soto and Nino spar a bit.

Sotomayor jabbed:

7The dissent’s insistence that there is “no practical, real-world effect” to treating this rule as mandatory, post, at 4, ignores the real world.Courts of appeals regularly amend COAs or remand for specification ofissues, notwithstanding the supposed potential to “embarras[s] a colleague.” . . .

Nino says no-no:

6The Court’s claim that “Torres involved . . . a different textual, contextual, and historical backdrop,” ante, at 13, n. 8, does not withstand scrutiny. First, consider the “textual backdrop.” The Court cannot really believe that Rule 3(c)(1)’s statement that a notice of appeal “must. . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante, at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it did, it would say as much, since that would readily distinguish Torres. And then consider the “contextual” (whatever that means) and “historical backdrop.” Each provision, in mandatory-but-not-jurisdictionallanguage, specifies what another document, itself jurisdictional in lightof statutory text and history, must contain. The two cases are, of course, literally “different,” ante, at 13, n. 8, but not in any legally relevant way.

And Sotomayor punches back twice as hard.

8The dissent claims that we fail to give stare decisis effect to Torres. Post, at 10. Setting aside the fact that Torres involved an unrelated Federal Rule featuring a different textual, contextual, and historicalbackdrop, the dissent notably fails to grapple with—indeed, its opinionis bereft of quotation to—any supporting reasoning in that opinion. That reasoning is simply not applicable here.

Scalia is not amused.

1The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7, in which litigants and courts have taken steps to correct a defective COA. But these actions are unsurprising in a world in which there wasthe possibility that this Court would treat §2253(c)(3) as a jurisdictionalrequirement and a court of appeals had already done so. The New World of the Court’s making, in which it is certain that an issuingjudge’s failure to identify any issue justifying a COA will not have jurisdictional consequences, is yet unexplored.

This conclusion is tight:

Terminology is destiny. Today’s holding, and the erosion of our prior jurisprudence that will perhaps follow upon it, is foreshadowed and facilitated by the unfortunateterminology with which we have chosen to accompany ourcampaign to “bring some discipline” to determinations ofjurisdiction. We have said that the universe of rules placing limitations upon the courts is divided into (1) “claims processing rules,” and (2) jurisdiction-removingrules. Unless our prior jurisprudence is to be repudiated,that is a false dichotomy. The requirement that the unsuccessful litigant file a timely notice of appeal, for example, is (if the term is to have any meaning) a claimsprocessing rule, ordering the process by which claims areadjudicated. Yet as discussed above, that, and all procedures that must be followed to proceed from one court to another, have always been deemed jurisdictional. The proper dichotomy is between claims processing rules that are jurisdictional, and those that are not. To put it otherwise suggests a test for jurisdiction that is not to be found in our cases.9

And Scalia admits error!

9It may well be that what I have called a false dichotomy was indeedmeant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443, 455 (2004), we said by way of dictum the following: “Clarity would befacilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personaljurisdiction) falling within a court’s adjudicatory authority.” Unless an appeal lacking a timely filing of a notice of appeal can be considered one that falls outside the appellate court’s “subject-matter jurisdiction”(which would be an odd usage), Kontrick’s dictum effectively announced  today’s decision, the overruling of Torres and Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978), and the elimination of jurisdictional treatment for all procedural requirements for appeal. That the announcement has not been heeded is demonstrated byBowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which (over the dissent of the author of Kontrick) reaffirmed Browder. I confess error in joining the quoted portion of Kontrick.

For purposes of FantasySCOTUS, I am scoring Scalia as an affirm. He dissented, but for all-intents-and-purposes he agreed that the writ should be dismissed, albeit on different grounds (a lack of jurisdiction).

I gave this talk at a Second Amendment Conference in Washington, D.C. on January 7, 2012. I talk about The Constitutionality of Social Cost and Judging the Constitutionality of Social Cost, with a focus on the right to keep and bear arms.

CompuCredit Corp. v. Greenwood was 8-1 with RBG in dissent.

Minneci v. Pollard was also 8-1 with RBG in dissent.

Justice Ginsburg seems to like to dissent solo quite a bit (see here and here).

Update: More from Kedar:

Justice Ginsburg also provided the lone dissenting vote in Minneci v. Pollard. Over the past ten years, Justice Ginsburg has only provided the lone dissenting vote about once every other term (.5 times per year), so it was especially surprising to see her do it twice in one day. During the Roberts Court, there have been an average of 7.4 8-1 decisions per year, making today’s barrage of 8-1 opinions even more surprising.

Best headline ever. Whoever wrote that should get a bonus.

Snoop has a license for medicinal marijuana in Cali? Really?

The past year’s most seminal article on technology-assisted review (commonly known as “automated document classification” or “predictive coding”) was Maura Grossman and Gordon Cormack’s law review piece, which effectively debunked the notion that manual review offers an unimpeachable gold standard. The authors succinctly summarized their statistically validated findings as follows:

This article offers evidence that . . . technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review, as measured by recall and precision.

Maura R. Grossman & Gordon Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech 11 (2011). Anne Kershaw and Joe Howie agree. In a survey of 11 e-discovery vendors who use technology-assisted review in the form of predictive coding, they found not only that technology-assisted review outpaced their aptly termed “brute force [human] linear review of electronic data,” but also technologies that have been used in the not-so-distant past. They write:

The results report that, on average, predictive coding saved 45% of the costs of normal review – beyond the savings that could be obtained by duplicated consolidation and email-threading. Seven respondents reported that in individual cases the savings were 70% or more.

Anne Kershaw & Joe Howie, Crash or Soar: Will The Legal Community Accept “Predictive Coding?” (Law Technology News Oct. 2010).

From a purely pragmatic standpoint, the volume of electronically stored information now doubles every 18-24 months. Forrester Research maintains that 70% of e-discovery costs are spent on processing, analysis, review, and production. These costs are not abating. Moreover, reducing costs isn’t just a monetary concern, but also a strategic one. As Chris Dale points out, if technology-assisted review “can save significant costs without significantly reducing accuracy then the burden falls on its opponents to point out its flaws.” Chris Dale, Having The Acuity to Determine Relevance with Predictive Coding (e-Disclosure Information Project Oct. 15, 2010).

Coding cases–something research assistants are wont to do, is quite ineffective and imprecise. Technology-assisted case-coding would be a game changer.

So where does human-expertise fit in?

The question thus becomes: What are the new roles and responsibilities for human expertise in this paradigm? The answer is that humans will continue to apply their insights and intelligence strategically to guide the technology. Automated document review technology is a tool like any other with potential that cannot be realized fully without the worldly knowledge and creativity that only humans can bring to bear in solving complex problems.

Statistical algorithms for text classification are capable of amazing feats when it comes to detecting and quantifying meaningful patterns amongst large data sets, but they are not capable of making the type of subjective qualitative assessments that constitute the art of discovery.

Chris Dale aptly points out that “[n]one of this technology solves the problem on its own. It needs a brain, and a legally trained brain at that . . . to [meet] the clients’ objective . . .  [of] disposing of a dispute in the shortest time by the most cost-effective method.” Chris Dale, Having The Acuity (supra); see Fed. R. Civ. P. 1 (“These rules . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”).

Accordingly, humans will continue to define the methodology deemed so critical in the judicial guidance discussed above. For defensibility considerations, it will be less important to dissect the technology than it will be to scrutinize the ongoing involvement of experts—e.g., lawyers, linguists, and statisticians—who must attempt to optimize technology-assisted review to (i) maximize precision and recall, (ii) find the appropriate balance between the two, and (iii) ensure that technology-generated results meet the unique demands of a given matter, regardless of what the quantitative picture alone may indicate.

Only attorneys can make the type of subjective determinations required for assessment of proportionality and reasonableness in e-discovery. They also play an essential role in guiding the assessments of any technology-assisted review; they are typically the sole source of coding decisions for training sets; and they are ultimately responsible for certifying the quality of the review’s results. In this sense, their active involvement forms the bedrock upon which every aspect of automated classification is built and validated.

However, relying upon technology and legal and subject matter knowledge alone—without the support of any additional expertise—will rarely allow attorneys to achieve the best possible results, and it may weaken the overall defensibility of the approach. Given that most technology-assisted review is founded on statistical algorithms and linguistic pattern detection, empowering these systems with the expertise of linguists and statisticians results in much greater flexibility and often higher quality and more readily defensible results in less time. It also enables a more effective allocation of resources, since statisticians and linguists can develop protocols for attorneys’ sampled reviews, perform in-depth data analyses, generate reports and summaries of findings, and implement innovative solutions that would, at best, be distractions for attorneys, who should ideally be free to focus their attention on case strategy. With each team member playing to his or her talents and training, the review effort realizes greater efficiency, higher quality results, and reduced production time and costs.

Statisticians, in addition to serving as a resource for the generation of sound performance metrics, provide a wealth of data-mining tools and techniques that can be utilized to supplement and enhance built-in classification algorithms for more tailored results. Linguists, meanwhile, have specialized analytic skills that make them especially well-suited to the task of leveraging patterns in language to expedite and improve the quality of document classification. Both linguists and statisticians bring unique perspectives and a rich set of tools to the automated document classification process that provide attorney teams with options and alternatives from which they may not otherwise benefit. . . .

Considering further the type of “rare event” documents described above, linguists and statisticians would certainly take steps to train the system to recognize these materials more readily. However, these documents are often by their very nature idiosyncratic and difficult to generalize based on statistical frequencies alone. Important documents of this type, though, present an ideal opportunity for the application of linguistic modeling techniques. Linguistic modeling offers more flexibility and greater precision for targeting special topics of particular interest that are low in frequency but high in importance. In this way, linguists and statisticians, collaborating closely with attorneys, can offer additional assurance that the most critical documents in their review will be discovered, even when relying upon an expedited technology-assisted approach to review.

Finally, the modeling techniques and algorithms that perform best for any given matter will vary, but it is often the case that multiple inputs generate outcomes that are superior to results generated by any single algorithm. Identifying which techniques to utilize and the specific weighting principles that will be used to synthesize them for final results generation requires special skills and on-demand experimentation. A team that includes statisticians and linguists will have the proper resources to engage in this type of real-time analysis for fully optimized results, whereas an attorney team alone may not.