December 2010

  • December 31, 2010

    In marking the 75th anniversary of the opening of the current building that houses the Supreme Court, an editorial in The New York Times concludes that the Roberts Court “needs to work harder to live up” to a broader standard and vision. “For that,” the editorial concludes, “justice must be truly democratic, not merely reserved for the powerful.”

    The editorial, “Temple to Justice,” cites authors Judith Resnik and Dennis Curtis who write in “Representing Justice,” that the building designed by Cass Gilbert, is “the major symbol of American courts’ essential role in our democracy and of the Supreme Court’s particular responsibility for making hard choices fairly and openly.”

    But the Roberts Court, the editorial maintains, has established a record that “too often runs counter to this conception: its rulings tend to deny rather than promote access to justice. The sense of being closed off was reinforced in May when the court decided, for security reasons, to stop the public from entering the building through the main bronze doors.”

    The editorial might have also mentioned some of the Roberts Court’s opinions, which some court-watchers have said skew toward corporate interests. Moreover others have noted two Roberts Court’s decisions that have tightened the pleading standards, making it much easier for cases to be tossed quickly out of the court system.

  • December 31, 2010

    The U.S. Court of Appeals for the Seventh Circuit ruled earlier this week that a lower federal court judge correctly held that a complaint alleging a conspiracy to fix prices of text message services was plausible enough for litigation to proceed.

    Verizon Wireless and other providers of text messaging services, citing the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, had urged the federal court in Chicago to find that the litigation’s underlying complaints against the wireless communications companies were insufficient and therefore should be dismissed.

    Seventh Circuit Judge Richard A. Posner concluded that the “district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.”

    Although the plaintiffs’ second complaint survived a Twombly challenge, Posner noted that Twombly was “designed to spare defendants the expense of responding to bulky, burdensome discovery unless the complaint provides enough information to enable an inference that the suit has sufficient merit to warrant putting the defendant to the burden of responding to at least a limited discovery demand.”

    Twombly and its successor, Ashcroft v. Iqbal, have been criticized by civil rights attorneys, law makers, and legal scholars as creating much more stringent pleading standards than intended by Congress. In its Iqbal decision, the Supreme Court held that for lawsuits to survive motions to dismiss, plaintiffs must provide much more specific factual information. The high court in Iqbal also stated that judges have greater discretion in dismissing complaints before the discovery stage of litigation. The Federal Rules of Civil Procedure created in 1938 had only required that plaintiffs file a complaint including a “short and plain” statement about why they were entitled to relief.

    Earlier this year, two civil rights attorneys argued in an ACS Issue Brief that the Supreme Court decisions in Twombly and Iqbal have undermined the “deliberative and inclusive process” that Congress established. For more discussion of the ramifications of Twombly and Iqbal, watch video of an ACS symposium, available here.

  • December 30, 2010
    Education Policy

    By James C. Foster, a professor of political science at Oregon State University-Cascades.
    When Joseph Frederick and his thirteen buddies hoisted their now (in)famous banner at the moment the 2002 Winter Olympic Torch Relay passed Juneau-Douglas High School, their stunt - and Principal Deborah Morse's reaction - set in motion a controversy that eventually reverberated all the way to the U.S. Supreme Court (SCOTUS). The outcome was what I term the "messy Morse" decision. The nine Justices wrote five separate opinions. The slim majority itself is deeply fragmented being, in effect, a 2-1-2 mélange ranging from Justices Alito's and Kennedy's wary concurrence, to Justice Thomas' belligerent rejection of Tinker v. Des Moines, with only Chief Justice Roberts and Justice Scalia embracing an unvarnished "drug speech exception" to secondary school students' First Amendment rights.

    The January 24, 2002 incident on Glacier Avenue did not have to come to this pass. Among the insights I garnered from researching, thinking about, and writing my book on what blew up into "a perfect constitutional storm in Alaska's Capital," I want to highlight two here. Perhaps these are better described as lessons learned. First, in the event, when push came to litigating, Alaska state courts would have been the preferable venue in which Frederick could have contested his claims (under Article I § Five of the Alaska Constitution). Second, and fundamentally, push need not have come to litigating at all.

  • December 29, 2010
    In an article for the Washington University Law Review, Neil Kinkopf explores the ongoing challenge progressives face in articulating a method of constitutional interpretation in an era where the right-wing has successfully bandied “judicial activism” about in promotion of so-called “originalism.”

    In a mock memorandum to President Obama, Kinkopf, a law professor at Georgia State University, and former counselor to the Assistant Attorney General for the Office of Legal Policy, argues why the administration would likely not expend political capital on a nominee to the Supreme Court who openly espouses a method of constitutional interpretation contrary to the prevailing method pushed by conservative jurists, academics and legal advocacy groups.

    Kinkopf argues that “the conservative legal movement that has convinced the public that its method of interpretation is legitimate and that other methods are activist did not succeed overnight,” and that currently there is no “significant constituency that demands we seek to promote a progressive legal agenda.”

    He continues that until such a constituency forms “demanding a progressive approach to constitutional issues,” it would be foolhardy for the administration to drift from its current strategy of not spending much political capital on particular nominees to the federal bench.

    So at the moment, Kinkopf explains, the conservative legal movement has successfully “convinced the public that its method of interpretation is legitimate and that other methods are activist ….”

    His mock memo to the president provides a strong argument on why progressives, including policymakers, should support and help advance progressive legal thinkers who have begun to formulate an answer to the proponents of “originalism.”

    Kinkopf cites in his law review article the work of scholars such as Stanford law school professor Pamela Karlan, who co-authored the book Keeping Faith with the Constitution, which articulates troubling shortcomings with originalism and advances a progressive method of constitutional interpretation.

  • December 28, 2010
    Guest Post

    By Abigail Phillips, senior staff attorney, Electronic Frontier Foundation

    After a down-to-the-wire push, the Federal Communications Commission recently approved by 3-2 its long-awaited regulatory proposal on net neutrality. We haven’t finished combing through the actual rules document, all 200 pages of which were recently released, but nonetheless the summary documents gave us some important hints about what the rules contain.

    Contrary to some expectations, the FCC is offering new theories for its basis for regulating the Net, opting not to re-assert the “ancillary” legal theory rejected by the D.C. Circuit Court of Appeals. Following the ‘throw it against the wall and see what sticks’ approach, the FCC has volunteered a smorgasbord of potential justifications, the sum of which apparently demonstrates that "[b]roadband Internet access services are clearly within the Commission’s jurisdiction." The lead argument appears to be Section 706 of the Telecommunications Act, which requires the FCC to report to Congress and take steps to help create universal broadband availability. We’ll see if the courts agree that this allows the FCC to create broad rules of the road for the Internet.

    The merits of the specific net neutrality proposals not withstanding, the FCC’s continued attempt to find a broad, unfocused basis for jurisdiction is a disconcerting strategy. An ungrounded rationale for regulatory authority is easily abused, opening the door to other, undesirable regulation.

    Now to the substance. From what we’ve learned from FCC statements and bulletins, the rules appear to be riddled with loopholes and exemptions, to the point where the FCC’s declaration that the order represents bright-line rules and a framework for predictability is hard to reconcile. It’s likely there won’t be much clarity around the rules’ application until they get invoked in FCC enforcement actions or otherwise.

    Following are the main points previewed in the FCC’s release:

    (1) Carve-outs for wireless. The FCC order creates a subset of less restrictive rules that apply exclusively to wireless services: Wireless operators need only ensure that consumers are able to access lawful websites and also apps that compete with the providers’ own services (both requirements subject to ‘reasonable network management’ needs). In addition, the rule against unreasonable discrimination does not apply to wireless services. Similar to past proposals, only a transparency requirement in the current order applies equally to wireless and wireline. This is significantly disappointing. From a consumer perspective, we don’t see a valid distinction between wired and wireless internet use.