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  • October 4, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law

    As the Supreme Court’s new Term begins, one of the key questions is how the Court will be affected by Justice Scalia’s absence. As interesting as the question of how the Court itself responds, however, is the question of how litigants behave – and what we can learn from that behavior. One datapoint came shortly after Justice Scalia’s death in February 2016, in a major antitrust case involving Dow Chemical. In this case, known in the lower courts as In re Urethane Antitrust Litigation, a class of purchasers of certain polyurethane chemical products sued Dow Chemical for price fixing. The plaintiffs prevailed at trial and obtained a $1.1 billion jury verdict. On appeal in the 10th Circuit, Dow Chemical argued, among other things, that the case was inappropriate for class adjudication and that the plaintiffs’ method of calculating damages was improper. The 10th Circuit upheld the jury verdict and Dow filed a petition for certiorari (Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091) in March 2015.

    Although Dow Chemical was an antitrust case, the issues it presented echo class-action-related issues in a wage-and-hour case that the Court heard last term, Tyson Foods, Inc. v. Bouaphakeo. In both cases, the defendant challenged the use of averages or representative proof of damages and argued that differences between the damages different class members may be entitled to rendered class (or collective) actions inappropriate. In Tyson Foods, for example, the defendant claimed that it was improper for the court to certify a class or collective action where the plaintiffs calculated damages by extrapolating from the time it took for certain employees to perform the tasks (donning and doffing protective and sanitary gear) for which they had not been paid overtime. In Dow Chemical, the class relied on a damages expert who looked at prices paid by some class members and extrapolated to classwide damages and Dow Chemical argued that differences between damages actually suffered by individual class members rendered class certification improper. Indeed, the Court took no action on the cert petition in Dow Chemical while Tyson Foods was pending, a sign that it considered the issues in the cases related and that the outcome of one might affect the other.

  • October 3, 2016
    Guest Post

    by Shira Scheindlin, former Senior Judge of the United States District Court for the Southern District of New York, of Counsel, Stroock & Stroock & Lavan LLP

    The issue of policing arose during the recent presidential debate. This issue is one of great importance throughout the country – particularly in light of a number of recent and documented shootings by police of unarmed African American and Hispanic victims. As the former federal judge who ruled on the constitutionality of stop and frisk as used in New York City, I write to clarify a number of the misstatements or misconceptions that have tainted this debate.

    Based on the evidence of racial bias presented during the 2013 trial in Floyd v. New York City, over which I presided, I found that stop and frisk – as practiced in New York – was unconstitutional. In a separate opinion, I directed a series of remedies to address the problem. It ordered very specific reforms that would result in the constitutional use of stop and frisk.

    There is no question that the use of stop and frisk is permitted by the Constitution as interpreted by the United States Supreme Court in Terry v.Ohio. The Court held that a stop can be made when an officer has “reasonable suspicion” that a person has committed, is committing or is about to commit a crime. The Court later held that in order to conduct a frisk, the officer must have reasonable suspicion that a person is armed and dangerous. If a stop and frisk is done in accordance with these principles then it will pass constitutional muster.

    But this is not what happened in New York, when the numbers of stops and frisks began to climb dramatically from approximately 2004 to 2012. In those years more than 4.4 million stops were made and it appears that most were not based on the required reasonable suspicion. This conclusion was reached by an examination of (1) the uncontested statistical evidence; (2) the testimony of experts who analyzed more than 4.4 million stops to determine whether there was racial bias; (3) institutional evidence of deliberate indifference (including the unconscious racial biases or indirect racial profiling exhibited by police officers) and (4) the examples of individual stops by selected plaintiffs who were members of the Floyd class.

  • September 30, 2016
    Guest Post

    by Danielle Lang, Deputy Director of Voting Rights and Anna Bodi, Partner Legal Fellow at The Campaign Legal Center

    Larry Joe Newby is a U.S. citizen living in Huntsville, Alabama. Mr. Newby is married, attends church, is raising his two adopted grandsons and works for the County as an assistant supervisor. However, due to a few minor non-violent offenses from well over a decade ago, Mr. Newby has not been able to vote and will not be able to cast a ballot this November. Mr. Newby is just one of the 5.85 million citizens whose voices have been silenced by felony disenfranchisement laws across the United States. 75 percent of these disenfranchised voters are no longer in prison, but are still unable to vote.

    Unwilling to accept the denial of his fundamental right to vote, Mr. Newby is a named plaintiff in a new lawsuit filed by the Campaign Legal Center, alongside a team of pro bono and civil rights litigators, that could finally turn the page on a dark history of discriminatory felon disenfranchisement in Alabama and nationwide.

    Alabama’s Strict and Discriminatory Felon Disenfranchisement Regime

    Alabama has one of the most severe and discriminatory felon disenfranchisement laws in the nation: it is one of only 12 states that permanently disenfranchise some or all citizens convicted of felony offenses and, as a result, disenfranchises 7% of its total voting age population and 15% of its black voting age population.

  • September 30, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Doniger, Program Director and Senior Attorney, Ben Longstreth, Senior Attorney, and Lissa Lynch, Climate Litigation Fellow, at the Natural Resources Defense Council’s Climate & Clean Air Progam

    At last, the Clean Power Plan has had its day in court. On Sept. 27, 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit heard nearly seven hours of oral argument – twice the scheduled time – in the case challenging EPA’s first-ever limits on carbon pollution from the nation’s 1,000 coal- and gas-fired power plants. Attorneys representing the Environmental Protection Agency, supportive power companies, states and environmental organizations robustly defended the reasonableness of the Clean Power Plan and its firm grounding in the Clean Air Act.

    Throughout the full day of active questioning, the well-prepared judges dug deeply into the challengers’ legal arguments and EPA’s supporting record. It is always unwise to predict the outcome of a case based on oral argument alone or to guess which way a particular judge will decide based on particular questions asked. But the oral argument shows that the court had a strong grasp of critical issues in the case and we are optimistic about the outcome. 

    For years, the Clean Power Plan’s foes have fought to block every effort to limit carbon pollution. The Supreme Court, however, has repeatedly held that EPA has the duty to curb climate-damaging pollutants under the Clean Air Act. The challengers have shifted their positions after each case, arguing that whatever EPA proposes, carbon pollution can be regulated only in some other way under some other provision or not at all. The judges seemed wise to this shell game during the argument.

  • September 28, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Arkush, Director, Congress Watch, Public Citizen

    We are often told that environmental concerns are akin to luxury goods that we cannot afford. Protecting the environment has a cost, the story goes and we will pay it in higher prices. Opponents of the EPA Clean Power Plan have made this type of claim, in some of its more extreme incarnations, central to their legal challenge in West Virginia v. EPA.

    According to a group of local chambers of commerce and manufacturing associations, the Clean Power Plan will cause “economic disaster”—largely due to higher electricity prices—in which “thousands of businesses” will “lay off workers or close their doors entirely.” Local Bus. Br. 23–24. In the words of the 60Plus Association, a Koch-Brothers-affiliated group that purports to represent seniors, the rule will cause people on fixed and low incomes to “suffer greatly” from “grinding, day-to-day deprivations.” Id. at 12–13. I will turn back to these arguments in a moment. But first, it is worth raising something important that the challengers and their amici completely ignore: the harms of climate change.

    Climate change is already damaging American consumers and businesses and it threatens massive future harm. By spurring more extreme weather events, climate change will cause trillions of dollars’ worth of damage to property and infrastructure. A 2014 analysis projects $525 billion in damage to coastal property alone, in just the next 15 years. The damage from extreme weather will, in turn, force businesses to raise prices and governments to raise taxes. Drought, floods and other weather events will raise the price of basic needs like food and water while lowering their quality. In addition to being poorer, we will be less healthy, burdened by more heat-related and food-, water- and insect-borne illnesses.