Forces! By: Matt Abendroth, Nick Hauck, Austin Stevens, Evan Williams.
Your Bottom Line and the Supreme Court ACC-Austin July 25, 2013 Evan A. Young
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Transcript of Your Bottom Line and the Supreme Court ACC-Austin July 25, 2013 Evan A. Young
© 2012
Your Bottom Line and the Supreme Court
ACC-AustinJuly 25, 2013
Evan A. Young
The Caseload
U.S. Courts of Appeals (2012) -- 57,570 1,104 cases per panel
U.S. Supreme Court (OT 2012) -- 78 73 under plenary review 5 summary reversals
The Justices
Case Topics
Employment Discrimination Securities and Corporations Preemption Class Actions Arbitration Intellectual Property Property Rights Jurisdiction Administrative Law Damages
Employment Discrimination
Vance v. Ball State University
"Under the definition of 'supervisor' that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. . . . The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the . . . affirmative defense."
"[T]he danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof."
UT Southwestern Med. Ctr. v. Nassar
With a lower causation standard: "Consider ... the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation."
"Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage."
Securities andCorporations
Gabelli v. SEC
“Unlike the private party who has no reason to suspect fraud, the SEC’s very purpose is to root it out, and it has many legal tools at hand to aid in that pursuit.”
“[T]he SEC as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.”
Sekhar v. United States
Lawson v. FMR LLC
Ritchie v. Rupe
Preemption
Mutual Pharmaceutical Co. v. Bartlett
"The results were horrific. Sixty to sixty-five percent of the surface of respondent's body deteriorated, was burned off, or turned into an open wound. She spent months in a medically induced coma, underwent 12 eye surgeries, and was tube-fed for a year. She is now severely disfigured, has a number of physical disabilities, and is nearly blind."
Karen Bartlett -- before and after
CBS News
Design-defect claim -- sulindac is an "unreasonably dangerous product"
Addressed by Change in chemical composition
Not allowed under federal law (or chemistry)
Change in warning (might work)
Design-defect claim -- sulindac is an "unreasonably dangerous product"
Addressed by Change in chemical composition
Not allowed under federal law (or chemistry)
Change in warning (might work)
Design-defect claim -- sulindac is an "unreasonably dangerous product"
Addressed by Change in chemical composition
Not allowed under federal law (or chemistry)
Change in warning (might work) Not allowed under federal law
American Trucking Associations v. City of Los Angeles
Gunn v. Minton
“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.”
Southern Crushed Concrete v. City of Houston
Class Actions
Amgen v. Connecticut Retirement
Comcast v. Behrend
Standard Fire Insurance v. Knowles
Arbitration
Oxford Health Plans v. Sutter
“It is not enough … to show that the [arbitrator] committed an error—or even a serious error.”
“[T]he sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.”
“The potential for these mistakes is the price of agreeing to arbitration. … The arbitrator’s construction holds, however good, bad, or ugly.”
“In sum, Oxford chose arbitration, and it must now live with that choice.”
BG Group PLC v. Argentina
American Express Co. v. Italian Colors Restaurant
Rachal v. Reitz
Intellectual Property
Ass’n of Molecular Pathology v. Myriad
Kirtsaeng v. John Wiley & Sons, Inc.
Medtronic v. Boston Scientific Group
In re Continental Tire
Property Rights
Koontz v. St. John’s River Mgmt. Water Dist.
Mt. Holly v. Mt. Holly Gardens Citizens
Kopplow Dev. v. City of San Antonio
Jurisdiction
Kiobel v. Royal Dutch Petroleum
DaimlerChrysler v. Bauman
Walden v. Fiore
Judge Ikuta in dissent below: Courts will have to take jurisdiction if “plaintiffs … only assert that the defendant knew their home state and subsequently engaged in some wrongful act.”
Administrative Law
City of Arlington v. FCC
“[T]he distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”
Chief Justice Roberts’s dissent: “[T]he citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating.”
Chief Justice Roberts’s dissent: “[W]e do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide.”
Sebelius v. Auburn Regional Medical Center
Flounder, you [messed] up,
you trusted us. Hey, make the
best of it!
Damages
Strickland v. Medlen
Ethics and Effectiveness for Amici
All Supreme Court cases are "class actions" -- they will govern all of us.
Businesses should want their interests to be considered.
Trade associations and other groups can leverage smaller members.
When you are the party, "recruiting" amici can be especially helpful -- but it must be done within proper boundaries
Ethics and Effectiveness for Amici
Serving the Court
"An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."
Supreme Court Rule 37.1
Ethics and Effectiveness for Amici
Serving the Client
Amicus briefs are basically discretionary
"Me too" briefs are useless
Amicus briefs opposing certiorari are counterproductive, but supporting certiorari can be extremely valuable
Joint briefs can be effective, and coordinating with others can save time and money
Ethics and Effectiveness for Amici
What an amicus brief should do
Explain broader context -- larger issues at stake
Provide subject-matter expertise or specialized knowledge, and show why this case matters to amicus
Alert court to additional authority or rationales
Be as concise as possible
Ethics and Effectiveness for Amici
What an amicus brief should not do
Replicate the arguments of a party or another amicus
Raise issues that were not preserved by the parties
Obscure the amicus's own interest
Go on and on
Ethics and Effectiveness for Amici
Critical:
Consent or motion for filing -- different for cert-stage and merits
Certification of compliance -- amicus briefs
shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution. The disclosure shall be made in the first footnote on the first page of text.
Supreme Court Rule 37.6
Ethics and Effectiveness for Amici
Texas Supreme Court (TRAP 11)
Consent and notice not required
Generous with respect to timing and space
"disclose the source of any fee paid or to be paid for preparing the brief," TRAP 11(c)
Especially helpful at the Petition for Review stage
Evan A. Young