Supreme Court: The Term in Review (2015–2016) Part 1 of 2


ANNOUNCER: “SUPREME COURT: THE TERM IN REVIEW,” A FEDERAL JUDICIAL CENTER PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM OUR STUDIO
IN WASHINGTON, DC, HERE’S JOHN COOKE. COOKE: HELLO. I’M JOHN COOKE, DEPUTY DIRECTOR AT
THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR’S EDITION OF “SUPREME COURT:
THE TERM IN REVIEW,” OUR ANNUAL LOOK
AT THE COURT’S DECISIONS MOST LIKELY TO AFFECT
THE DAY-TO-DAY WORK OF FEDERAL JUDGES. SADLY, THE MOST SIGNIFICANT
EVENT AT THE COURT THIS TERM WAS NOT AN ARGUMENT OR DECISION,
BUT THE DEATH IN FEBRUARY OF ASSOCIATE JUSTICE
ANTONIN SCALIA. JUSTICE SCALIA’S TENURE
ON THE COURT SPANNED NEARLY 3 DECADES,
DURING WHICH HE LEFT A LASTING MARK ON THE COURT’S
JURISPRUDENCE. HIS PASSING WAS
AND WILL BE FELT IN MANY WAYS. MOST IMMEDIATELY,
IT LEFT THE COURT WITH ONLY 8 JUSTICES
FOR THE REMAINDER OF THE TERM. THAT LED TO 4 CASES IN WHICH
NO MAJORITY COULD BE FORMED, AND THE LOWER COURT DECISION
WAS AFFIRMED BY AN EQUALLY DIVIDED COURT. THIS VACANCY’S EFFECT
ON OTHER DECISIONS AND DELIBERATIONS
CAN ONLY BE GUESSED AT. IN ANY EVENT, THE COURT DID
RESOLVE QUESTIONS INVOLVING EQUAL PROTECTION,
SEARCH AND SEIZURE, CRIMINAL LAW,
AND ABORTION RIGHTS. WE’LL DISCUSS THESE
AND MANY OTHERS WITH OUR FACULTY TODAY. WE’RE FORTUNATE AGAIN
TO BE JOINED BY ERWIN CHEMERINSKY,
DEAN OF THE UNIVERSITY OF CALIFORNIA AT IRVINE
SCHOOL OF LAW; EVAN LEE OF THE HASTINGS COLLEGE
OF LAW IN SAN FRANCISCO; LAURIE LEVENSON OF LOYOLA
LAW SCHOOL IN LOS ANGELES; AND SUZANNA SHERRY OF THE VANDERBILT UNIVERSITY
LAW SCHOOL. WE’LL ALSO HEAR
FROM MICHELLE HARNER FROM THE UNIVERSITY OF MARYLAND
SCHOOL OF LAW ABOUT TWO BANKRUPTCY DECISIONS AND JOHN THOMAS OF THE
GEORGETOWN UNIVERSITY LAW CENTER REGARDING PATENT LAW CASES. BETH WIGGINS
OF OUR RESEARCH DIVISION AND JIM CHANCE FROM OUR
EDUCATION DIVISION WILL MODERATE THE PROGRAM. IN THE FIRST PART
OF THE PROGRAM, WE’LL EXAMINE CASES INVOLVING
THE FIRST AND 14th AMENDMENTS, FEDERAL COURTS
AND CIVIL PROCEDURE, FEDERALISM,
SEPARATION OF POWERS, FEDERAL STATUTES,
REPRODUCTIVE RIGHTS, RELIGIOUS FREEDOM,
AND BANKRUPTCY. AFTER A SHORT BREAK,
WE’LL LOOK AT PATENT LAW, CRIMINAL LAW AND PROCEDURE,
AND THE SIXTH AMENDMENT. THE WRITTEN MATERIALS
THAT ACCOMPANY THIS PROGRAM AT FJC ONLINE INCLUDE
AN OUTLINE WITH A SUMMARY OF EACH
OF THE DECISIONS WE WILL DISCUSS ALONG WITH AN APPENDIX
WITH SUMMARIES OF THE REMAINING CASES DECIDED
BY THE COURT THIS TERM. THE ONLINE OUTLINE ALSO CONTAINS
LINKS TO THE FULL OPINIONS. WE BEGIN WITH A LOOK AT AN IMPORTANT
FIRST AMENDMENT DECISION. WIGGINS: HEFFERNAN
VERSUS CITY OF PATTERSON ASKED WHETHER A PERSON CAN SUE
TO RECOVER FROM THE VIOLATION OF A CONSTITUTIONAL RIGHT,
EVEN WHEN HE DIDN’T EXERCISE THAT RIGHT. HEFFERNAN WORKED FOR PATTERSON
POLICE CHIEF JAMES WITTIG, WHO’D BEEN APPOINTED
BY MAYOR JOSE TORRES. TORRES WAS RUNNING
FOR RE-ELECTION AGAINST GA–JAMES SPAGNOLA. HEFFERNAN’S MOTHER ASKED HIM
TO PICK UP A LAWN SIGN FOR HER AT SPAGNOLA’S HEADQUARTERS. WELL, IT GOT BACK
TO POLICE CHIEF WITTIG THAT HEFFERNAN HAD BEEN SEEN
HOLDING THE LAWN SIGN AND TALKING TO SPAGNOLA’S
CAMPAIGN STAFF, AND THEN HEFFERNAN WAS DEMOTED
FOR WHAT HIS SUPERVISORS PERCEIVED AS HIS
ACTIVE INVOLVEMENT IN SPAGNOLA’S CAMPAIGN. THAT JUST WASN’T TRUE. HEFFERNAN WAS ONLY THERE TO DO
HIS MOTHER A FAVOR. HEFFERNAN SUED,
SAYING THE DEMOTION VIOLATED HIS
FIRST AMENDMENT RIGHTS, BUT BOTH THE FEDERAL DISTRICT
COURT AND THE COURT OF APPEALS REJECTED HIS ARGUMENT
BECAUSE HEFFERNAN WAS NOT ACTUALLY ENGAGED
IN FIRST AMENDMENT ACTIVITY. THE COURT OF APPEALS SAID THAT
A FREE SPEECH RETALIATION CLAIM WAS ONLY ACTIONABLE
WHEN THE ADVERSE ACTION WAS IN RESPONSE TO AN EMPLOYEE’S
ACTUAL, NOT PERCEIVED, EXERCISE OF
CONSTITUTIONAL RIGHTS, SO, LAURIE, WHAT DID
THE SUPREME COURT SAY? LEVENSON: WELL, THE SUPREME
COURT RULED 6-2 IN HEFFERNAN’S FAVOR. THE MAJORITY SAID THAT,
EVEN THOUGH PRIOR CASE LAW DID NOT RESOLVE THIS ISSUE,
THE GOVERNMENT HAD ACTED PURSUANT TO A CONSTITUTIONALLY
HARMFUL POLICY WHETHER OR NOT HEFFERNAN
WAS INVOLVED IN THE POLITICAL ACTIVITY,
AND ALSO HEFFERNAN WAS DIRECTLY HARMED
BY THIS POLICY. THE REAL HARM HERE,
THE COURT SAID, WAS IN DISCOURAGING PRO–
EMPLOYEES FROM ENGAGING IN PROTECTED ACTIVITY. CHEMERINSKY: I THINK THAT
THE CASE IS MOST IMPORTANT HOLDING THAT MOTIVE MATTERS
IN FREE SPEECH ANALYSIS. THE SUPREME COURT’S BEEN
INCONSISTENT ABOUT THAT IN THE PAST, FIRST MOST FAMOUSLY IN UNITED STATES
VERSUS O’BRIEN IN 1969. THE COURT UPHELD
A FEDERAL STATUTE THAT MADE IT A FEDERAL CRIME FOR MEN TO BURN
OR DESTROY THEIR DRAFT CARDS. THE LAW WAS CLEARLY MOTIVATED
BY A DESIRE TO PUNISH THAT FORM OF EXPRESSION,
BUT THE SUPREME COURT UPHELD THE STATUTE, SAYING,
THE MOTIVE OF THE GOVERNMENT
DOESN’T MATTER. HEFFERNAN CLEARLY ESTABLISHES
THAT THE GOVERNMENT VIOLATES THE FIRST AMENDMENT
IF ITS MOTIVE IS TO PUNISH SPEECH. WIGGINS: THANK YOU. OUR DISCUSSION OF
14th AMENDMENT CASES ARE NEXT. CHANCE: OUR DISCUSSION
OF 14th AMENDMENT CASES BEGINS WITH WHAT IS SURELY ONE
OF THE MOST WIDELY ANTICIPATED DECISIONS OF THE TERM–FISHER
VERSUS UNIVERSITY OF TEXAS. WE MIGHT MORE PROPERLY CALL
THIS, UH, DECISION FISHER II BECAUSE THE CASE WAS ALREADY
BEFORE THE COURT IN 2013, BUT TO UNDERSTAND THIS DECISION,
WE NEED TO GO BACK EVEN FURTHER. IN 2003, THE COURT HELD
IN GRUTTER VERSUS BOLLINGER THAT COLLEGES AND UNIVERSITIES
HAVE A COMPELLING INTEREST IN HAVING A D–DIVERSE
STUDENT BODY AND MAY USE RACE AS ONE
CONSIDERATION AMONG MANY IN ADMISSIONS DECISIONS. TEXAS STATE LAW GRANTED
ADMISSION TO THE UNIVERSITY TO EVERY STUDENT WHO GRADUATED
IN THE TOP 10% OF THEIR HIGH-SCHOOL CLASS
ANYWHERE IN THE STATE. THAT WOULD FILL ABOUT 75%
OF THE AVAILABLE FRESHMEN SLOTS, BUT IT STILL WOULDN’T PROVIDE
AS DIVERSE A STUDENT BODY AS THE UNIVERSITY FELT
IT NEEDED, SO IN 2004, THE REGENTS
AT UNIVERSITY OF TEXAS INITIATED A NEW
ADMISSIONS POLICY AIMED AT DEVELOPING
A MORE DIVERSE AND– UH, UNDERGRADUATE POPULATION,
OR, THAT MEANT, THE REMAINING 25% OF THE CLASS
WOULD BE ADMITTED BASED ON AN INDIVIDUALIZED
REVIEW OF APPLICATIONS– ESSAYS, HIGH-SCHOOL GRADES,
TEST SCORES. UH, 7 OTHER FACTORS
WERE CONSIDERED. ONE OF THESE WAS THAT
THE STUDENT’S PRESENCE ON CAMPUS WOULD CON–WOULD
CONTRIBUTE TO RACIAL DIVERSITY. NOW, ABIGAIL FISHER,
A WHITE WOMAN WHO HAD BEEN DENIED ADMISSION
TO THE UNIVERSITY IN 2008, BROUGHT SUIT, CLAIMING THAT
THE USE OF RACE IN ADMISSIONS VIOLATED HER FOURTH–
14th AMENDMENT RIGHTS UNDER THE EQUAL PROTECTION
CLAUSE. THE DISTRICT COURT
RULED IN HER FAV– RULED–I’M SORRY–RULED
IN FAVOR OF THE UNIVERSITY, AND THE FIFTH CIRCUIT AFFIRMED,
BUT THE SUPREME COURT REVERSED AND REMANDED. IT HELD THAT A COLLEGE
OR UNIVERSITY MUST PROVE THAT THERE–THERE IS NO
RACE-NEUTRAL WAY TO ACCOMPLISH DIVERSITY BEFORE
IT CAN USE RACE AS A FACTOR. THE COURT IMPOSED
ITS HIGHEST STANDARD OF REVIEW, STRICT SCRUTINY, AND–
AND REMANDED THE CASE TO THE FIFTH CIRCUIT
FOR REHEARING BASED ON THEIR DECISION. THE FIFTH CIRCUIT RULED
THAT TEXAS HAD MET THE STRICT SCRUTINY BURDEN
AND THAT–AND FISHER APPEALED TO THE, UH, SUPREME COURT,
SO AT THAT TIME, HOW DID THE JUSTICES
HANDLE THIS, SUZANNA? SHERRY: WELL, SURPRISING
MOST PEOPLE THEY RULED 5– 4-3 THAT THE UNIVERSITY
HAD MET ITS BURDEN OF SHOWING THAT THEY HAD
A COMPELLING INTEREST IN MORE DIVERSITY AND THAT THERE
WAS NO RACE-NEUTRAL WAY TO ACCOMPLISH THAT GOAL,
AND, THEREFORE, THAT, UH, ABIGAIL FISHER’S EQUAL
PROTECTION RIGHTS WEREN’T VIOLATED. NOW, IT WAS 4-3 BECAUSE
JUSTICE KAGAN HAD RECUSED HERSELF BECAUSE
SHE’D DEALT WITH THE CASE EARLIER WHEN SHE
WAS SOLICITOR GENERAL. WHAT MADE IT SURPRISING
WAS THAT THE DECISION WAS WRITTEN BY JUSTICE KENNEDY,
WHO HAD NEVER BEFORE VOTED TO UPHOLD
AN AFFIRMATIVE ACTION PROGRAM, SO HE RELIED ON SEVERAL THINGS
TO CONCLUDE THAT THIS AFFIRMATIVE ACTION
PROGRAM WAS CONSTITUTIONAL. UH, FIRST, THE UNIVERSITY HAD
STUDIED THE PROBLEM FOR MONTHS AND THEN HAD ADOPTED THE PROGRAM
IN GOOD FAITH, AND THAT’S SOMETHING
WE’LL RETURN TO IN A MINUTE. UH, THE COURT ALSO SAID
THAT THERE WAS EVIDENCE THAT MINORITY STUDENTS ON CAMPUS
EXPERIENCED FEELINGS OF ISOLATION AND LONE–
LONELINESS BECAUSE OF THE LOW NUMBERS,
UH, AND THAT THE PERCENTAGE OF MINORITY STUDENTS
HAD STAGNATED UNDER THE TOP 10% PLAN ALONE,
AND THEN, FINALLY, THE COURT POINTED OUT THAT THERE WERE MANY
UNDERGRADUATE CLASSES THAT HAD FEW OR NO MINORITIES
IN THE CLASS. CHEMERINSKY: JUSTICE KENNEDY’S
MAJORITY OPINION STRESSED THAT COLLEGE UNIVERSITIES
HAD A COMPELLING INTEREST IN HAVING A CRITICAL MASS
OF DIVERSE STUDENTS, BUT, HE SAID,
COLLEGE UNIVERSITIES DON’T NEED TO QUANTIFY WHAT’S NECESSARY
FOR A CRITICAL MASS. HE ALSO SAID THE FACT
THAT A COLLEGE UNIVERSITY HAS ONE MECHANISM
TO ACHIEVE DIVERSITY, LIKE A TOP 10% PLAN,
DOESN’T KEEP THEM FROM HAVING OTHER MECHANISMS
TO OBTAIN DIVERSITY. I THINK THE MOST IMPORTANT PART
OF JUSTICE KENNEDY’S OPINION IS AT THE END WHERE HE TALKED
ABOUT THE NEED FOR DEFERENCE TO COLLEGE UNIVERSITIES
IN MAKING ACADEMIC JUDGMENTS WITH REGARD TO DIVERSITY. HE TALKED ABOUT STATES
CAN BE LABORATORIES FOR EXPERIMENTATION. THIS WAS SO DIFFERENT IN TONE
FROM HIS OPINION 3 YEARS AGO WHERE HE SAID, THERE IS TO BE
NO DEFERENCE TO COLLEGE UNIVERSITIES
IN DECIDING WHETHER OR NOT AFFIRMATIVE ACTION WAS NECESSARY
TO YOUR DIVERSITY, BUT I DO THINK IT’S IMPORTANT
TO EMPHASIZE THAT HE SAID THAT A COLLEGE UNIVERSITY
HAS TO PROVE A COMPELLING NEED FOR IT
TO HAVE DIVERSITY. IT HAS TO PROVE THAT THERE’S NO
OTHER WAY TO ACHIEVE DIVERSITY, AND IT HAS TO GO THROUGH
PERIODIC EXAMINATION TO SHOW THAT THE PROGRAM
CONTINUES TO BE NECESSARY AND IS NEWLY TAILORED. CHANCE: NOW, THERE WAS SOME
PRETTY VIGOROUS DESCENTS IN THIS CASE, WEREN’T THERE? SHERRY: YES. THERE WERE TWO. JUSTICE THOMAS, UH,
AGAIN DECLARED HIS VIEW THAT ANY USE OF RACE
IN COLLEGE ADMISSIONS VIOLATES
THE EQUAL PROTECTION CLAUSE, UH, BUT HE ALSO JOINED
THE CHIEF JUSTICE IN A DESCENT WRITTEN
BY JUSTICE ALITO, THAT, BY THE WAY, RAN 50 PAGES, MORE THAN TWICE
WHAT THE MAJORITY OPINION WAS, UH, AND JUSTICE ALITO’S OPINION,
UH, QUESTIONED QUITE A FEW OF THE MAJORITY’S,
UH, ARGUMENTS AND ASSERTIONS, FOR EXAMPLE, ABOUT HOW IT WAS
THAT THE UNIVERSITY CAME TO USE RACE IN ITS
ADMISSIONS PRO–UH, PROCESS, ABOUT THE ROLE
THAT RACE DID PLAY IN THE ADMISSIONS PROCESS, UH,
AND ABOUT THE RELATIVE BALANCE OF–OF VARIOUS MINORITY GROUPS
THAT WERE REPRESENTED, UH, IN THE UNDERGRADUATE
CLASSES. CHEMERINSKY: BUT THE BOTTOM LINE
IS THAT THIS DECISION IS A HUGE VICTORY FOR COLLEGE
AND UNIVERSITIES THAT WANT TO ENGAGE
IN AFFIRMATIVE ACTION. SHERRY: I AGREE. IT IS A VERY
BIG VICTORY FOR THOSE SCHOOLS. I THINK THE BOTTOM LINE IS THAT
THERE’S ESSENTIALLY NO AFFIRMATIVE ACTION POLICY
SHORT OF RACIAL QUOTAS THAT WILL BE HELD
UNCONSTITUTIONAL, AND I THINK THIS DECISION
TELL SCHOOLS THAT THE MORE OPAQUE THEY MAKE
THEIR ADMISSIONS PROGRAM, UH, THE–THE, UH, MORE LIKELY
THEY ARE TO WITHSTAND CONSTITUTIONAL SCRUTINY. CHEMERINSKY: I DISAGREE
WITH YOU HERE. I DON’T THINK THE MESSAGE IS
THAT AFFIRMATIVE ACTION PROGRAMS HAVE HELD, SO LONG AS THEY’RE
NOT RACIAL QUOTAS. JUSTICE KENNEDY’S
VERY CAREFUL TO SAY THAT A COLLEGE UNIVERSITY
MUST PROVE ITS NEED FOR A DIVERSE STUDENT BODY,
AND IT WAS PROVED THERE’S NO OTHER WAY
TO ACHIEVE DIVERSITY EXCEPT AFFIRMATIVE ACTION. HE POINTED OUT TEXAS HAD GONE
THROUGH A YEARLONG STUDY AND PUBLISHED A REPORT
DOCUMENTING THIS. HE ALSO EMPHASIZES THAT THE NEED
FOR COLLEGE UNIVERSITIES TO GO THROUGH PERIODIC
RE-EXAMINATION TO CONTINUALLY
RE-ESTABLISH THE NEED FOR THEIR AFFIRMATIVE ACTION
PROGRAMS. SHERRY: THAT IS INDEED WHAT
THE MAJORITY SAYS, BUT, AS THE DISSENTS POINT OUT,
THE COURT DOESN’T EXAMINE THE UNIVERSITY’S CLAIMS
VERY CLOSELY. IT’S A MORE DEFERENTIAL REVIEW
THAN HE SAYS IT IS, AND SO I THINK ULTIMATELY,
THE LOWER COURTS ARE GONNA BE FACED WITH A CHOICE
BETWEEN FOLLOWING WHAT THE SUPREME COURT SAYS AND FOLLOWING WHAT
THE SUPREME COURT HAS DONE. CHANCE: THANKS. OUR NEXT TWO DECISIONS
ARE ALSO ABOUT THE EQUAL PROTECTION CLAUSE,
BUT THIS TIME AS IT APPLIES TO
REDISTRICTING PLANS. IN THE EARLY 1960s,
THE COURT ANNOUNCED THE PRINCIPLE
OF ONE PERSON, ONE VOTE, MEANING THAT ALL
LEGISLATIVE DISTRICTS, BOTH STATE AND FEDERAL,
HAD TO BE ABOUT THE SAME SIZE AND POPU–UH, POPULATION,
BUT WHAT THE COURT HAS BEEN LESS CLEAR ABOUT
OVER THE YEARS IS WHETHER THAT CALCULATION
SHOULD MEASURE TOTAL NUMBERS OF PERSONS
OR TOTAL NUMBERS OF VOTERS IN THE PERSPECTIVE DISTRICT. THE CHALLENGERS
IN OUR NEXT DECISION, EVENWEL VERSUS ABBOTT,
ARGUED THAT TEXAS STATE LEGISLATIVE DISTRICTS
SHOULD BE BASED ON THE NUMBER
OF ELIGIBLE VOTERS, NOT TOTAL POPULATION. THEY CONTEND THAT EVERY VOTER
SHOULD HAVE EQUAL REPRESENTATION
IN THE POLITICAL PROCESS. RIGHT NOW, TEXAS USES– ER, THE TEXAS USES THE TOTAL
POPULATION IN ITS CALCULATION. NOW, THIS WAS AN 8-0 DECISION. ERWIN, WILL YOU TELL US
ABOUT IT? CHEMERINSKY: JUSTICE GINSBURG
WROTE THE OPINION FOR THE COURT. THE COURT HELD THAT IT IS
CONSTITUTIONALLY PERMISSIBLE TO DISTRICT ON THE BASIS
OF TOTAL POPULATION. SHE LOOKED AT
CONSTITUTIONAL HISTORY. SHE FOCUSED ON OUR ARTICLE I
OF THE CONSTITUTION AND SECTION TWO
OF THE 14th AMENDMENT. BOTH SAY THAT
THE HOUSE OF REPRESENTATIVES WILL REDISTRICT
BASED ON POPULATION. SHE FOCUSED ON PRECEDENT, HOW
PRIOR SUPREME COURT DECISIONS HAD ALWAYS ASSUMED
THAT DISTRICTING WOULD BE BASED ON TOTAL POPULATION. SHE FOCUSED ON PRACTICE,
HOW IN ALL 50 STATES, DISTRICTING’S DONE
BASED ON TOTAL POPULATION. SHERRY: UH, SO, AS ERWIN SAID,
THE COURT REJECTED THE CHALLENGER’S ASSERTION
THAT IT HAD TO BE BASED ON VOTER POPULATION, UM,
BUT THE SOLICITOR GENERAL HAD ARGUED, UH, THAT IT SHOULD–
THAT THE COURT SHOULD HOLD THAT STATES WERE REQUIRED TO USE
TOTAL POPULATION RATHER THAN
V–VOTER POPULATION, AND ON THAT QUESTION,
THE COURT SPLIT. THE MAJORITY RULED
THAT TOTAL POPULATION WAS A PROPER METHOD
BUT THEN SAID IT WAS, UH, NOT GOING TO DECIDE
WHETHER IT WAS THE ONLY PROPER METHOD,
ALTHOUGH SOME OF THE REASONING IN THE CASE SUGGESTS THAT MAYBE
IT IS THE ONLY PROPER METHOD. JUSTICE THOMAS CONCURRED
IN THE JUDGMENT ONLY BECAUSE HE WANTED TO MAKE THE CHOICE
TOTALLY UP TO THE STATES AS BETWEEN VOTER POPULATION
AND TOTAL POPULATION, AND JUSTICE ALITO CONCURRED
IN THE JUDGMENT ONLY I–IN ORDER TO CRITICIZE THE MAJORITY’S
RELIANCE ON ALLOCATION OF CONGRESSIONAL SEATS,
WHICH HE DID NOT THINK WAS APPROPRIATE, AND ALSO TO–
TO STRESS THAT THE COURT HAD NOT AND SHOULD NOT
DECIDE QUESTION– THE QUESTION OF WHETHER
THE STATES COULD USE DIFFERENT POPULATIONS
IN THEIR CALCULATIONS, SO I THINK THAT QUESTION
IS GOING TO COME BACK TO THE COURT, UH, AS SOON
AS SOME STATE DECIDES TO USE VOTER POPULATION
INSTEAD OF TOTAL POPULATION. CHEMERINSKY:
I AGREE WITH YOU ON THAT. I THINK IT’S INTERESTING
THE COURT DID NOT ADDRESS WHETHER IT’D BE CONSTITUTIONAL
TO DISTRICT ON THE BASIS OF NUMBER OF ELIGIBLE VOTERS. THERE’S A PRIOR
SUPREME COURT CASE, BURNS VERSUS RICHARDSON
IN 1966, THAT APPROVED DISTRICTING
ON THE BASIS OF ELIGIBLE VOTERS. EVEN THOUGH THIS CASE
DID NOT CHANGE THE LAW, I THINK IT’S ENORMOUSLY
IMPORTANT FOR PRACTICAL AND
POLITICAL PERSPECTIVE. IT’S PARTICULARLY SIGNIFICANT
REGARDING THE VOTING STRENGTH OF MINORITY COMMUNITIES
WHERE THERE’D BE A NUMBER OF NONCITIZENS, BOTH
DOCUMENTED AND UNDOCUMENTED. HAD THE COURT HELD OTHERWISE,
THERE’D BE REDISTRICTING IN CITIES AND STATES
ACROSS THE COUNTRY. MAYBE WHAT’S MOST IMPORTANT
IS AT THE END OF JUSTICE GINSBURG’S OPINION
WHERE SHE STRESSES THAT ELECTED OFFICIALS REPRESENT
ALL CONSTITUENTS– CITIZEN AND NONCITIZEN,
ADULT AND CHILDREN. CHANCE: OUR SECOND
“ONE PERSON, ONE VOTE,” EQUAL-PROTECTION DECISION
IS HARRIS VERSUS ARIZONA INDEPENDENT
REDISTRICTING COMMISSION. THIS ONE IS MORE
STRAIGHTFORWARD. LAST TERM, THE SUPREME COURT
UPHELD AN ARIZONA CONSTITUTIONAL PROVISION
GIVING REDISTRICTING DECISIONS TO AN INDEPENDENT COMMISSION
MADE UP OF TWO DEMOCRATS, TWO REPUBLICANS,
AND AN INDEPENDENT. THAT COMMISSION ADOPTED
A REDISTRICTING PLAN BY A VOTE OF 3-2 WITH THE TWO
REPUBLICANS DISSENTING. A GROUP OF VOTERS SUED,
CHALLENGING THE PLAN, AND A 3-JUDGE FEDERAL
DISTRICT COURT UPHELD IT. THE CHALLENGERS’ ARGUMENT
WAS THAT, BECAUSE THERE WAS A 4.07 DEVIATION
BETWEEN THE POPULATIONS OF THE LARGEST
AND SMALLEST DISTRICTS, UH, THAT THE PLAN VIOLATED THE “ONE PERSON, ONE VOTE”
PRINCIPLE AND THEIR EQUAL PROTECTION
RIGHTS UNDER THE 14th AMENDMENT. JUSTICE BREYER WROTE
FOR A UNANIMOUS COURT THAT THE REDISTRICTING PLAN
WAS CONSTITUTIONAL. HE WROTE THAT THE CONSTITUTION
DOES NOT DEMAND MATHEMATICAL PERFECTION
AND THAT, GENERALLY, DE–DEVIATIONS OF LESS THAN 10%
ARE UPHELD. THE COURT REJECTED THE ARGUMENT
THAT THE REDISTRICTING WAS DONE TO HELP
DEMOCRATIC CANDIDATES AND SAID THAT THE DEVIATIONS
PREDOMINANTLY REFLECTED THAT THE COMMISSION
ATTEMPTED TO COMPLY WITH THE FEDERAL
VOTING RIGHTS ACT. JUSTICE BREYER ALSO WROTE THAT,
EVEN THOUGH THE SUPREME COURT HAD EFFECTIVE INVALIDATED
THE PRECOMPLIANCE REQUIREMENT OF THE VOTING RIGHTS ACT IN
SHELBY COUNTY VERSUS HOLDER IN 2013, THAT IS WAS
STILL IN EFFECT IN 20– UH, 2010, UH, WHEN
THE COMMISSION TOOK ITS ACTIONS. SUZANNA, ANY THOUGHTS
ON THIS DECISION? SHERRY: I’D ONLY POINT OUT
THAT THE COURT DIDN’T DECIDE WHETHER PARTISANSHIP WAS
AN ILLEGITIMATE FACTOR IN REDISTRICTING DECISIONS. IT JUST HELD THAT PARTISANSHIP
DIDN’T PLAY A SUBSTANTIAL ROLE IN THIS REDISTRICTING DECISION. CHEMERINSKY:
IT’S A REALLY GOOD POINT. I ALSO THINK IT’S IMPORTANT
TO EMPHASIZE THAT JUSTICE BREYER SAID, FOR DEVIATIONS
THAT ARE LESS THAN 10%, THE BURDEN IS ON
THE CHALLENGER TO PROVE AN IMPERMISSIBLE MOTIVE. CHANCE: IN OUR FINAL
14th AMENDMENT DECISION, WE SHIFT OUR FOCUS
FROM THE EQUAL PROTECTION TO THE DUE PROCESS CLAUSE. THIS IS WILLIAMS
VERSUS PENNSYLVANIA. TERRANCE WILLIAMS WAS CONVICTED
OF MURDER IN 1984 AND SENTENCED TO DEATH. FOR THE PROSECUTOR IN THAT CASE
TO SEEK THE DEATH PENALTY, SHE NEEDED TO GET PERMISSION
FROM THE DISTRICT ATTORNEY, WHO WAS THEN RONALD CASTILLE. 30 YEARS LATER, WITH WILLIAMS
STILL ON DEATH ROW, IT CAME TO LIGHT
THAT THE PROSECUTION HAD WITHHELD POSSIBLE
EXCULPATORY INFORMATION IN VIOLATION
OF BRADY VERSUS MARYLAND DURING WILLIAMS’ FIRST TRIAL. WILLIAMS FILED
A STATE HABEAS PETITION, AND HIS EXECUTION WAS DELAYED–
WAS STAYED, AND A SENTENCING HEARING,
NEW ONE, WAS SCHEDULED. UH, THE STATE OF PENNSYLVANIA
ASKED IT’S OWN SUPREME COURT TO VACATE THE STAY,
WHICH IT DID, AND THAT’S HOW THIS CASE
GOT TO THE SUPREME COURT. CAN YOU TELL US WHY, SUZANNA? SHERRY: BECAUSE BY THEN,
RONALD CASTILLE, WHO HAD BEEN THE DISTRICT
ATTORNEY WHEN THE STATE HAD DECIDED TO SEEK
THE DEATH PENAL–DEATH PENALTY, WAS THE CHIEF JUSTICE OF
THE PENNSYLVANIA SUPREME COURT. WILLIAMS ASKED CASTILLE TO
RECUSE HIMSELF FROM THE DECISION OR, AT THE VERY LEAST,
TO REFER THE RECUSAL MOTION TO THE FULL COURT. CASTILLE DID NEITHER. HE PARTICIPATED IN THE DECISION
IN WHICH THE STATE SUPREME COURT UNANIMOUSLY REVERSED
THE TRIAL COURT’S GRANT OF THE WRIT OF HABEAS CORPUS,
AND SO THE QUESTION BEFORE THE U.S. SUPREME–
U.S. SUPREME COURT WAS WHETHER CHIEF JUSTICE
CASTILLE’S PARTICIPATION IN THE DECISION VIOLATED
WILLIAMS’ DUE PROCESS RIGHTS. CHEMERINSKY:
AND THE SUPREME COURT RULED 5-3 THAT IT DID VIOLATE DUE PROCESS
FOR CASTILLE TO PARTICIPATE. JUSTICE KENNEDY WROTE
THE OPINION FOR THE COURT. JUSTICE KENNEDY STRESSED
THAT THE CORE OF DUE PROCESS IS A REQUIREMENT FOR
AN IMPARTIAL DECISION MAKER. THE COURT SAID,
FOR CASTILLE TO PARTICIPATE AND BE INVOLVED IN THE CASE
AS DISTRICT ATTORNEY HAD TOO GREAT A RISK
OF ACTUAL BIAS. SHERRY: AND THE QUESTION
OF INVOLVEMENT, THE– THE MAJORITY SAID, WAS–
WAS WHETHER, UH, HE PLAYED A DIRECT ROLE OR, UH, MADE
A CRITICAL DECISION, AND WHAT COUNTS
AS PLAYING A DIRECT ROLE OR MAKING A CRITICAL DECISION,
THE COURT SAID, IS A VERY FACTBOUND
DETERMINATION, BUT THE DECISION
TO SEEK THE DEATH PENALTY IS THAT KIND OF A DECISION FOR
EVERY RESPONSIBLE PROSECUTOR, AND, IN ADDITION,
AS THE COURT POINTED OUT, CASTILLE, WHEN HE RAN
FOR JUDICIAL OFFICE, HAD RUN A CAMPAIGN BASED IN PART
ON HOW MANY PEOPLE HE HAD SENTENCED–
HE’D SENT TO DEATH ROW, SO CLEARLY, FOR HIM,
IT WAS A SIGNIFICANT, NOT CASUAL DECISION. CHEMERINSKY: JUSTICE KENNEDY’S
OPINION STRESSES THAT IT’S AN OBJECTIVE TEST
AS WHETHER DUE PROCESS IS VIOLATED BY LETTING SOMEBODY
PARTICIPATE IN THE DECISION WHO WAS INVOLVED IN THE CASE
IN ANOTHER WAY, AND HERE, YOU FOCUS ON
THERE WAS JUST TOO GREAT A RISK OF ACTUAL BIAS
TO COMPLY WITH DUE PROCESS. SHERRY: WE SHOULD ALSO POINT OUT
THAT THE MAJORITY SAID THAT AN UNCONSTITUTIONAL
FAILURE TO RECUSE IS A STRUCTURAL ERROR
THAT IS NOT AMENABLE TO HARMLESS ERROR ANALYSIS,
SO, REGARDLESS OF WHETHER THE PARTICULAR JUDGE’S DECISION
WAS DISPOSITIVE, IT IS STILL ERROR,
SO THE COURT REMANDED TO THE STATE COURT
FOR A NEW REVIEW, UH, OF THE STATE’S APPEAL,
AND WE SHOULD ALSO NOTE THAT CHIEF JUSTICE CASTILLE
ACTUALLY RESIGNED FROM THE COURT TWO WEEKS AFTER THE DECISION. CHANCE: HMM.
ERWIN, UH, SUZANNA, THANK YOU. I UNDERSTAND WE HAVE A QUESTION. WIGGINS: WE DO,
UM, AND THE QUESTION IS–IS, “HOW DOES WILLIAMS RELATE
TO THE COURT’S EARLIER DECISION “IN CAPERTON VERSUS MASSEY COAL
ABOUT DUE PROCESS AND THE DISQUALIFICATION
OF JUDGES?” CHEMERINSKY: IN BOTH CASES,
THE SUPREME COURT FOUND A VIOLATION OF DUE PROCESS. BOTH OPINIONS WERE WRITTEN
BY JUSTICE KENNEDY. BOTH STRESSED THERE’S AN
OBJECTIVE TEST IN DUE PROCESS, AND BOTH FOCUSED WHETHER
THERE’S TOO GREAT A RISK OF ACTUAL BIAS. CHANCE: ALL RIGHT. NEXT, SOME FEDERAL COURT
AND CIVIL PROCEDURE DECISIONS. THE COURT ISSUED
A NUMBER OF DECISIONS THIS TERM THAT SPOKE TO THE POWERS
OF THE LOWER FEDERAL COURTS IN TRYING CASES
AND HEARING APPEALS. THE FIRST TWO
WE’RE GONNA LOOK AT INVOLVED CLASS ACTIONS. FIRST, IN CAMPBELL VERSUS E– UM, CAMPBELL-EWALD
VERSUS GOMEZ, THE ORIGINAL PLAINTIFF
JOSE GOMEZ SUED THE CAMPBELL-EWALD COMPANY
FOR VIOLATING THE TELEPHONE CONSUMER
PROTECTION ACT BY SENDING HIM A TEXT MESSAGE THAT HE HAD NEVER CONSENTED
TO RECEIVE. GOMEZ FILED
A CLASS ACTION COMPLAINT ON BEHALF OF A NATIONWIDE
CLASS OF PEOPLE WHO HAD ALSO NOT CONSENTED
TO RECEIVE THE TEXT. GOMEZ SOUGHT TREBLE
STATUTORY DAMAGES AS WELL AS AN INJUNCTION
AGAINST CAMPBELL’S SENDING UNSOLICITED MESSAGES. NOW, WHAT DID
CAMPBELL-EWALD DO, EVAN? LEE: WELL, BEFORE, UH,
THE DEADLINE FOR GOMEZ TO FILE A MOTION FOR CLASS
CERTIFICATION HAD PASSED, UH, CAMPBELL-EWALD OFFERED
TO SATISFY HIS, UH, PERSONAL
TREBLE DAMAGES CLAIM. IT ALSO PROPOSED, UH,
AN INJUNCTION THAT WOULD’VE BARRED IT
FROM, UH, SENDING TEXT MESSAGES IN VIOLATION
OF THE TPCA, UH, BUT CAMPBELL-EWALD
DENIED LIABILITY AND DENIED THE ALLEGATIONS, UH,
THAT WERE MADE IN THE COMPLAINT. GOMEZ TURNED DOWN THE OFFER. CHANCE: SO WHAT WAS THE ISSUE
BEFORE THE SUPREME COURT? LEE: UH, THERE WERE TWO ISSUES
BEFORE THE SUPREME COURT, AND WE’LL GET TO THE SECOND ONE,
UH, IN A MINUTE. IN TERMS OF THE CLASS ACTION
QUESTION, CAMPBELL-EWALD ARGUED THAT THERE
WAS NOT FEDERAL JURISDICTION TO, UH, CERTIFY THE CLASS
BECAUSE IT HAD OFFERED TO SATISFY ALL OF GOMEZ’S,
UH, DEMANDS FOR RELIEF, THUS MOOTING THE CASE, UM, THE NAMED PLAINTIFF’S CASE. CHANCE: SO WHAT
DID THE COURT DO, SUZANNA? SHERRY: WELL, JUSTICE GINSBURG
WROTE FOR THE COURT, AND IT HELD THAT UNDER RULE 68 OF THE FEDERAL RULES
OF CIVIL PROCEDURE, AND UNACCEPTED SETTLEMENT OFFER
HAS NO FORCE– IN OTHER WORDS,
IT CANNOT MOOT THE CASE– AND SHE LIKENED IT TO
AN UNACCEPTED CONTRACT OFFER IN THAT IT CREATES
NO LASTING RIGHTS OR OBLIGATIONS OF ANY KIND. CHEMERINSKY: WAS THIS
AN ISSUE THAT WAS BEFORE THE SUPREME COURT
JUST A FEW YEARS AGO? SHERRY: IT WAS,
IN A CASE CALLED GENESIS HEALTHCARE
VERSUS SYMCZYK, BUT IN THAT CASE,
UNLIKE THIS ONE–THIS ONE– SYMCZYK HAD AGREED
THAT HER CASE WAS MOOT, AND THE ONLY QUESTION WAS WHAT
THAT DID TO THE CLASS ACTION. IN THIS CASE, OF COURSE,
GOMEZ DID NOT AGREE THAT HIS WAS MOOT. UM, IN SYMCZYK, THOUGH,
JUSTICE KAGAN WROTE A DISSENT THAT THE COURT ESSENTIALLY
ADOPTED IN THIS CASE. UH, KAGAN WROTE THAT–
JUSTICE KAGAN WROTE THAT AN UNACCEPTED SETTLEMENT
OFFER WAS A LEGAL NULLITY WITH NO OPERATIVE EFFECT,
AND IN CAMPBELL-EWALD, THAT’S WHAT
JUSTICE GINSBURG ADOPTED. CHANCE: OK, BUT THERE WERE
A COUPLE OF DISSENTS IN THIS CASE AND ANOTHER ISSUE
THAT YOU MENTIONED, EVAN. LEE: RIGHT. FIRST,
THE COURT RESERVED THE QUESTION OF WHETHER, UH, THE CASE,
WOULD BE MOOT IF THE DEFENDANT HAD NOT ONLY MADE THE OFFER,
BUT HAD ACTUALLY DEPOSITED THE FULL AMOUNT OF, UH,
THE PLAINTIFF’S INDIVIDUAL CLAIM IN AN ACCOUNT PAYABLE
TO THE PLAINTIFF, UH, AND IF THE COURT HAD ENTERED
JUDGMENT FOR THE PLAINTIFF IN THAT AMOUNT. THE DISSENTS MADE A LOT
OUT OF THAT RESERVATION IN THE MAJORITY OPINION. UH, THE CHIEF JUSTICE ALONG WITH
JUSTICES SCALIA AND ALITO, UH, OPINED THAT THE QUESTION
ISN’T WHETHER AN UNACCEPTED OFFER
CREATES A CONTRACT, BUT INSTEAD WHETHER THERE
REMAINS A CASE OR CONTROVERSY, UH, BETWEEN THE TWO PARTIES
WHEN ONE PARTY OFFERS TO FULLY MEET
THE OTHER PARTY’S DEMANDS. SHERRY: I DON’T THINK WE’VE SEEN
THE LAST OF THESE QUESTIONS. FOR EXAMPLE, THE NINTH CIRCUIT
HAS ALREADY HELD THAT DEPOSITING THE FULL AMOUNT
INTO AN ESCROW ACCOUNT FOR THE PLAINTIFF
IS NOT ENOUGH TO MOOT, AT LEAST NOT BEFORE
THE PLAINTIFF HAS A– AN OPPORTUNITY
FOR A FULL HEARING ON THE CLASS CERTIFICATION
MOTION. CHANCE: HMM, AND WHAT ABOUT
THE SECOND ISSUE THAT YOU MENTIONED, EVAN? LEE: UM, CAMPBELL-EWALD
HAD ALSO ARGUED THAT, BECAUSE ITS CLIENT AT THE TIME
WAS THE UNITED STATES– AT THE TIME THAT IT HAS
SENT OUT THOSE ORIGINAL TEXTS WAS THE UNITED STATES NAVY,
UH, THAT CAMPBELL-EWALD COULDN’T BE SUED
BECAUSE IT SHARED IN THE GOVERNMENT’S, UH,
SOVEREIGN IMMUNITY. THE MAJORITY
REJECTED THAT ARGUMENT, UH, HOLDING THAT
THE COMPANY’S STATUS AS A GOVERNMENT CONTRACTOR
DID NOT ENTITLE IT TO DERIVATIVE
SOVEREIGN IMMUNITY. FEDERAL CONTRACTORS
CAN INVOKE, UH, IMMUNITY FROM SUITS FOR THEIR
FEDERAL WORK, BUT NOT WHEN THEY
VIOLATE FEDERAL LAW OR VIOLATE THE GOVERNMENT’S
EXPLICIT INSTRUCTIONS. CHANCE: THANKS. OUR SECOND CLASS ACTION DECISION IS TYSON’S FOOD
VERSUS BOUAPHAKEO. THE CLASS IN THIS CASE
WAS MADE UP OF WORKERS AT A TYSON’S
PORK PROCESSING PLANT WHO HAD– UH, THEY HAD TO SPEND TIME
BEFORE AND AFTER WORK DONNING AND DOFFING
PROTECTIVE CLOTHING. THE WORKERS FILED A COMPLAINT UNDER THE FAIR LABOR
STANDARDS ACT, OR FLSA, THAT THEY WERE NOT RECEIVING
STATUTORILY MANDATED OVERTIME PAY FOR TIME SPENT
DOING THESE ACTIVITIES. TYSON CALLED THE DONNING
AND DOFFING TIME K-CODE TIME, AND IN 1998, IT STARTED PAYING
WORKERS FOR 4 MINUTES OF K-CODE TIME,
THE ESTIMATED TIME THAT IT TOOK WORKERS
TO PUT ON AND TAKE OFF THE PROTECTIVE CLOTHING. IN 2007, IT STOPPED
PAYING ALL WORKERS THE UNIFORM K-CODE TIME
AND INSTEAD PAID SOME WORKERS BETWEEN 4 AND 8 MINUTES
AND OTHER WORKERS NOTHING. WELL, TYSON’S KEPT NO RECORDS
OF THE TIME THAT EACH EMPLOYEE ACTUALLY SPENT DONNING
AND DOFFING, AND THE WORKERS FILED SUIT
UNDER THE FLSA AND A SIMILAR IOWA STATE LAW. THE SUIT ASKED THAT
THE IOWA STATE CLAIMS BE CERTIFIED AS A CLASS
UNDER RULE 23 OF THE FEDERAL RULES
OF CIVIL PROCEDURE, AND, BECAUSE TYSON KEPT
NO RECORDS OF ACTUAL TIME SPENT DONNING AND DOFFING,
THE WORKERS HAD TO RELY ON AN EXPERT STUDY USING
REPRESENTATIVE SAMPLES OF THIS DONNING
AND DOFFING TIME, AND THAT WAS THE SOURCE
OF THE MAJOR ISSUE BEFORE THE SUPREME COURT,
WASN’T IT, SUZANNA? SHERRY: THAT’S EXACTLY RIGHT. ONE OF THE EXPERTS
HAD VIDEOTAPED OVER 700 EMPLOYEES
IN DIFFERENT DEPARTMENTS DONNING AND DOFFING
THE PROTECTIVE GEAR AND CAME UP WITH
AN AVERAGE AMOUNT OF TIME FOR EACH OF THE DEPARTMENTS. THEN A SECOND EXPERT USED THAT–
THOSE AVERAGES PLUS THE WORKERS’
ACTUAL TIME RECORDS OF– OF THEIR NON-K-TIME WORK,
UH, AND FIGURED OUT, UH, HW MUCH TIME EACH EMPLOYEE
HAD WORKED, INCLUDING THE DONNING
AND DOFFING, TO DETERMINED WHETHER
THEY’D WORKED OVERTIME, UH, BUT TYSON ARGUED THAT
NO CLASS SHOULD BE CERTIFIED BECAUSE THE DIFFERENT WORKERS
IN DIFFERENT DEPARTMENTS TOOK DIFFERENT TIMES
TO DON AND DOFF AND THAT THE EXPERTS’
STATISTICAL EVIDENCE COULD NOT MAKE UP
FOR THOSE DIFFERENCES AND, THEREFORE, TYSON SAID,
INDIVIDUAL ISSUES WOULD PREDOMINATE
OVER THE COMMON ISSUES THAT WERE NEEDED
FOR CLASS CERTIFICATION. CHANCE: AND WHAT
DID THE COURT DECIDE? LEE: THE MAJORITY REJECTED
TYSON’S ARGUMENT. IT, UH, REJECTED
A CATEGORICAL PROHIBITION ON REPRESENTATIVE EVIDENCE
IN CLASS ACTIONS AND HELD THAT THE PROPRIETY
OF, UH, SUCH EVIDENCE DEPENDED ON THE, UH–I’M QUOTING HERE– “THE DEGREE TO WHICH
THE EVIDENCE IS RELIABLE “IN PROVING OR DISPROVING
THE ELEMENTS OF THE CAUSE OF ACTION.” THE COURT, UM, SAID
THAT REPRESENTATIVE EVIDENCE WAS PARTICULARLY APPROPRIATE
IN THIS CASE, UH, BECAUSE TYSON HAD FAILED
TO KEEP, UH, ANY RECORDS OF THE TIME THAT EMPLOYEES SPENT
DONNING AND DOFFING THE PROTECTIVE GEAR, UH,
AND THE MAJORITY DISTINGUISHED, UH, BETWEEN THIS CASE
AND ITS EARLIER DECISION IN, UH, WAL-MART VERSUS DUKES, WHERE IT HAD RULED THAT, UH,
WORKERS COULDN’T USE REPRESENTATIVE EVIDENCE, UH,
TO CERTIFY CLASS. IN THIS CASE,
UNLIKE IN WAL-MART, UM, THE REPRESENTATIVE EVIDENCE
WAS SUFFICIENTLY PROBATIVE FOR, UM, INDIVIDUAL EMPLOYEES TO
USE THAT REPRESENTATIVE EVIDENCE TO SUPPORT THEIR
INDIVIDUAL CLAIMS. SHERRY: I THINK THAT
CLASS ACTION PLAINTIFFS ARE GOING TO RELY ON THIS
DECISION IN THE FUTURE TO TRY AND INTRODUCE STATISTICAL
OR REPRESENTATIVE EVIDENCE, BUT I THINK WE SHOULD
KEEP IN MIND TWO CAVEATS. UM, FIRST, JUSTICE KENNEDY
WROTE THAT THE USE OF REPRESENTATIVE EVIDENCE TO
ESTABLISH CLASSWIDE LIABILITY IS NEITHER ALWAYS BANNED
NOR ALWAYS PERMITTED. IT DEPENDS ON–
AND HERE, I’M QUOTING– “THE PURPOSE FOR WHICH
THE SAMPLE IS BEING INTRODUCED AND ON THE UNDERLYING CAUSE
OF ACTION.” THE KEY, I THINK, WILL BE
TO ESTABLISH WHETHER THE PARTICULAR REPRESENTATIVE
OR SAMPLE EVIDENCE COULD BE USED TO ESTABLISH
LIABILITY IN INDIVIDUAL CASES, IN WHICH CASE, IT CAN BE USED
IN THE CLASS ACTION, UM, AND THE OTHER CAVEAT
IS THAT THE COURT DIDN’T DECIDE WHETHER A CLASS
CAN BE CERTIFIED IF IT CONTAINS MEMBERS
WHO ARE UNINJURED AND, THEREFORE,
HAVE NO RIGHT TO RELIEF. LEE: YEAH. THE MAJORITY REFUSED
TO REACH THAT QUESTION BECAUSE THE DISTRICT JUDGE
HADN’T YET APPORTIONED, UH, THE DAMAGES FOR PURPOSES
OF DISTRIBUTION. UH, IN THEIR DISSENT, UH,
JUSTICES THOMAS AND ALITO WROTE THAT THEY WOULD HAVE HELD
THAT UNINJURED CLASS MEMBERS MAY NEVER, UH, RECOVER. CHEMERINSKY:
CHIEF JUSTICE ROBERTS WROTE A CONCURRING OPINION
THAT COULD BE IMPORTANT ON THAT. HE SAID, IT’S AN UNRESOLVED
QUESTION WHETHER A CLASS CAN BE CERTIFIED IF THERE’S
MEMBERS WHO DIDN’T SUFFER THE INJURY
AND DON’T HAVE MONEY DAMAGES. THAT’S AN ISSUE THAT’S NOW
SPLITTING THE LOWER COURTS. CHANCE: THANK YOU. OUR THIRD DECISION, AMERICOLD REALTY TRUST
VERSUS CONAGRA FOODS, ASKED HOW TO DETERMINE
THE CITIZENSHIP OF A TRUST FOR PURPOSES
OF DIVERSITY JURISDICTION. AMERICOLD WAS A REAL ESTATE
INVESTMENT TRUST, OR REIT, THAT OWNED A WAREHOUSE
THAT BURNED DOWN. CONAGRA LOST FOOD IN THE FIRE
AND SUED AMERICOLD IN FEDERAL COURT UNDER
DIVERSITY JURISDICTION. AMERICOLD ARGUED
THAT DIVERSITY WAS INCOMPLETE BECAUSE THE CITIZENSHIP
OF A REIT WAS BASED ON THE RESIDENCES
OF ALL ITS SHAREHOLDERS. CONAGRA ARGUED THAT AMERICOLD’S
CITIZENSHIP SHOULD BE BASED ON THE RESIDENCES
OF ITS TRUSTEES ONLY. THE COURT AGREED WITH AMERICOLD. THE CONTROLLING PRINCIPLE
IS THE DIFFERENCE BETWEEN CORPORATIONS
AND UNINCORPORATED ENTITIES. A CORPORATION IS CONSIDERED
A CITIZEN OF THE STATE WHERE IT IS INCORPORATED AND WHERE IT HAS A PRINCIPAL
PLACE OF BUSINESS. UNINCORPORATED ENTITIES
LIKE AN REIT ARE CONSIDERED CITIZENS OF THE STATES
OF ALL ITS MEMBERS. NOW SHAPIRO VERSUS McMANUS. 28 USC, SECTION 2284(b)(1),
PROVIDES THAT, “UPON THE FILING “OF A REQUEST FOR 3 JUDGES,
THE JUDGE TO WHOM THE REQUEST “IS PRESENTED SHALL,
UNLESS HE DETERMINES “THAT 3 JUDGES ARE NOT REQUIRED,
IMMEDIATELY NOTIFY “THE CHIEF JUDGE OF THE CIRCUIT, WHO SHALL DESIGNATE
THE 3 JUDGES.” NOW, THE QUESTION
BEFORE THE COURT IN SHAPIRO CONCERNS THE INTERPRETATION
OF THE PHRASE “UNLESS HE DETERMINES THAT
3 JUDGES ARE NOT REQUIRED.” HOW DID THIS ONE COME
BEFORE THE COURT, SUZANNA? SHERRY: WELL, IT STARTED
WHEN A BIPARTISAN GROUP OF MARYLAND CITIZENS OBJECTED
TO THE RESULTS OF THEIR STATE’S 2011
REDISTRICTING. UM, THEY SAID IT WAS
GERRYMANDERING, AND THEY BROUGHT A PRO SE ACTION
IN FEDERAL COURT ALLEGING THAT
THE REDISTRICTING BURDENED THEIR FIRST AMENDMENT RIGHTS
OF ASSOCIATION, UH, AND THEY ASKED
FOR A 3-JUDGE COURT TO HEAR– TO HEAR THE COMPLAINT,
BUT THE DISTRICT JUDGE, INSTEAD OF NOTIFYING
THE, UH, CHIEF JUDGE OF THE CIRCUIT,
INSTEAD THE DISTRICT JUDGE DISMISSED THE CASE ON THE GROUND
THAT IT DIDN’T STATE A CLAIM, UH, FOR RELIEF, UH,
UNDER TWOMBLEY AND IQBAL. CHANCE: AND WHAT
DID THE COURT DO, EVAN? LEE: THE COURT HELD THAT
THE LANGUAGE IN THE STATUTE WAS MANDATORY, UH, THAT
THE ORIGINAL JUDGE, THEREFORE, WAS REQUIRED TO NOTIFY
THE CHIEF CIRCUIT JUDGE AND–AND DIDN’T HAVE ANY
DISCRETION TO DISMISS THE CASE. JUSTICE, UH, SCALIA WROTE
FOR A UNANIMOUS COURT HERE AND SAID THAT THE PHRASE
“UNLESS HE DETERMINES THAT 3 JUDGES
ARE NOT REQUIRED” DID NOT MEAN, UH, THAT
THE JUDGE HAD DISCRETION TO DISMISS THE ACTION
ON ITS MERITS. INSTEAD, THE COURT SAID
THAT THE JUDGE MUST READ THE COMPLAINT
SIMPLY TO DETERMINE THAT IT PRESENTS THE KIND
OF CASE THAT’S COVERED BY THE 3-JUDGE STATUTE,
AND HERE, THE QUESTION, UH, WAS THE CONSTITUTIONALITY
OF APPORTIONMENT, WHICH CLEARLY WAS WITHIN
THE SCOPE OF THE STATUTE. SHERRY: I THINK THAT MAIN PART
OF THE HOLDING IS GONNA BE OF SOMEWHAT LIMITED
PRECEDENTIAL VALUE BECAUSE IT’S ONLY GOING TO APPLY
TO CASES THAT REQUIRE A 3-JUDGE COURT,
BUT THERE MAY BE ONE PART OF THE CASE THAT’S
OF BROADER RELEVANCE. THE COURT REJECTED A SEPARATE
ARGUMENT BY THE DEFENDANTS. THEY HAD ARGUED THAT THE CLAIM
RAISED WHAT’S CALLED AN INSUBSTANTIAL
FEDERAL QUESTION AND THAT, THEREFORE,
THERE WAS NO FEDERAL– THERE WAS NO FEDERAL
JURISDICTION, UH, AND, THEREFORE,
THE DISMISSAL WAS PROPER, AND THE COURT SAID NO. THE COURT REITERATED
THAT THERE’S A BIG DIFFERENCE BETWEEN A FAILURE TO STATE
A CLAIM FOR RELIEF UNDER TWOMBLEY AND IQBAL
ON THE ONE HAND AND FAILING TO RAISE
A SUBSTANTIAL FEDERAL QUESTION AT ALL ON THE OTHER. THE COURT WROTE
THAT THE CASE LACKS A SUBSTANTIAL FEDERAL QUESTION
ONLY IF THE FEDERAL CLAIMS ARE–AND I QUOTE–“WHOLLY
INSUBSTANTIAL AND FRIVOLOUS,” BUT UNDER TWOMBLEY AND IQBAL,
THE CASE CAN BE DISMISSED IF THE FACTUAL ALLEGATIONS
DON’T PLAUSIBLY ESTABLISH AN ENTITLEMENT TO RELIEF. CHANCE: POSSIBLY FRIVOLOUS
LAWSI–SUITS WERE ALSO AT THE HEART
OF OUR NEXT DECISION– BRUCE VERSUS SAMUELS. UNDER THE PRI–PRISON
LITIGATION REFORM ACT, PRISONERS FILING CASES
IN FEDERAL COURT MUST PAY FILING FEES,
EVEN IF THEY QUALIFY FOR IN FORMA PAUPERIS STATUS. THE PURPOSE OF THE LAW
IS TO KEEP PRISONERS FROM FILING FRIVOLOUS LAWSUITS
AND CLOGGING UP THE COURTS. THE PRISONER WHO BRINGS A CASE
MUST PAY AN INITIAL FEE WHICH VARIED DEPENDING ON HOW
MUCH MONEY HE OR SHE HAS IN THEIR PRISON ACCOUNT. THEN THE PRISONER CAN PAY
THE BALANCE OF THE FEE IN MONTHLY INSTALLMENTS
LIMITED TO 20% OF THE PRISONER’S
PRECEDING MONTH’S INCOME. MORE THAN A FEW PRISONERS
BRING MULTIPLE CASES IN FEDERAL COURT,
AND THE QUESTION BEFORE THE SUPREME COURT
IN THIS CASE WAS WHETHER THE 20%
INSTALLMENT PAYMENTS SHOULD BE CALCULATED PER CASE
OR PER PRISONER. THE COURT DECIDED THAT THE FEES
WERE TO BE ASSESSED PER CASE, NOT PER PRIS–PER PRISONER. THE COURT WROTE THAT,
SINCE ALL THE PARTIES AGREE THAT THE INITIAL FEE
SHOULD BE ASSESSED ON A PER-CASE BASIS,
THE REMAINING INSTALLMENTS SHOULD ALSO BE ASSESSED
THAT WAY. ALSO, THE PLRA’s GOAL
IN DISCOURAGING FRIVOLOUS LAWSUITS
WOULD BE UNDERMINED, AND FINALLY,
DIETZ VERSUS BOULDON, THE COURT ADDRESSED THE QUESTION
OF WHETHER A JUDGE CAN RESCIND A JURY DISCHARGE ORDER
AND RECALL THE JURY IN A CIVIL TRIAL IF THE JUDGE
DISCOVERS THAT THE VERDICT CONTAINS LEGAL ERROR. IN THIS CASE, A JURY RETURNED
A LEGALLY IMPERMISSIBLE VERDICT, BUT THE JUDGE DIDN’T
REALIZE THE ERROR UNTIL SHORTLY AFTER
HE HAD EXCUSED THE JURY, SO HE BROUGHT THE JURY
BACK AGAIN AND ORDERED THEM TO DELIBERATE AGAIN
TO CORRECT THE MISTAKE. THE QUESTION
BEFORE THE SUPREME COURT WAS WHETHER A JUDGE COULD
RECALL A JURY THAT HAD BEEN DISCHARGED
OR WHETHER THE COURT CAN REMEDY THE ERROR
BY JUST ORDERING A NEW TRIAL, SO, SUZANNA, HOW DID THE COURT
ANSWER THAT QUESTION? SHERRY: THE COURT SAID THAT
THE JUD–THAT, UH, THE JUDGE COULD RECALL A DISMISSED JURY BUT ONLY WITHIN
CERTAIN LIMITATIONS. UH, JUDGES HAVE INHERENT POWER
TO ACHIEVE THE EFFICIENT DISPOSITION OF
CASES, BUT THEY CAN ONLY DO SO, UH, IN A WAY THAT’S REASONABLE
AND THAT’S NOT CONTRARY TO ANY RULE OR STATUTE,
SO THE RECALL ORDER IS WITHIN THE JUDGE’S POWER,
BUT IT HAS TO BE CAREFULLY CIRCUMSCRIBED
TO MAKE SURE THAT THE, UH, PARTIES
HAVE AN IMPARTIAL JURY. LEE: YEAH, AND IN ORDER
TO MAKE SURE THAT NO JUROR HAS BEEN TAINTED, UH,
BETWEEN THE TIME OF DISMISSAL AND THE TIME OF RECALL THEN,
THE COURT SAID THAT THE JUDGE HAS TO CONSIDER
A NUMBER OF FACTORS. ONE IS THE LENGTH OF TIME BETWEEN THE DISMISSAL
AND THE RECALL. A SECOND WOULD BE, UH,
WHETHER JURORS HAD SPOKEN TO ANYBODY ABOUT THE CASE,
UH, AFTER BEING DISMISSED AND BEFORE BEING RECALLED. A THIRD IS THE PUBLIC REACTION
TO THE VERDICT. WAS IT EMOTIONAL,
OR WAS IT SUBDUED. UH, FOURTH, UH, FACTOR
IS WHETHER ANY JURORS ACCESSED ON–ANY ONLINE RESOURCES,
UH, RELATED TO THE CASE BETWEEN DISMISSAL AND RECALL,
AND THE COURT SAID THAT THE JUDGES SHOULD CONSIDER
ANY OTHER FACTORS THAT IT FINDS
TO BE RELEVANT, AS WELL. SHERRY: I THINK WE SHOULD
POINT OUT THAT THE COURT ALSO RECOGNIZED
THIS INHERENT POWER ONLY IN CIVIL CASES. IT DID NOT ADDRESS THE QUESTION
OF WHETHER THERE WAS SUCH A POWER IN CRIMINAL CASES. LEE: YEAH. YOU KNOW, I THINK
THAT THERE’S GONNA BE QUESTIONS, UH, IN THE FUTURE, UH, REGARDING
THE IMPLEMENTATION OF THIS. FOR EXAMPLE, I MEAN,
WHAT IF A JUROR, UH, SPOKE TO SOMEBODY
ON THEIR CELL PHONE, UH, IMMEDIATELY AFTER
THE VERDICT CAME IN, UH, BUT ALL THEY SAID WAS, “WE’RE
FINISHED. I’M COMING HOME”? UM, I WOULDN’T THINK THAT THAT
WOULD PRECLUDE A JURY RECALL, BUT I THINK WE’RE
GONNA HAVE TO SEE. CHANCE: THANKS, EVAN, SUZANNA. NEXT UP, FEDERALISM
AND SEPARATION OF POWERS. STANDING TO SUE, THE RIGHT TO BRING AN ACTION
IN FEDERAL COURT, HAS 3 PRONGS. THE PLAINTIFF MAST HAVE
SUFFERED AN INJURY-IN-FACT, THAT INJURY MUST BE TRACEABLE
TO THE DEFENDANT, AND THE IN–INJURY MUST BE
LIKELY TO BE ADDRESSED BY THE REQUESTED RELIEF. IN SPOKEO VERSUS ROBINS, THE QUESTION IS, WHAT
CONSTITUTES INJURY-IN-FACT? SPOKEO’S WEBSITE THAT PROVIDES
IN-DEPTH REPORTS CONTAINING A GREAT DEAL OF PERSONAL
INFORMATION ABOUT PEOPLE, IN THE CASE OF THOMAS ROBINS, MOST OF THAT INFORMATION
WAS WRONG. SPOKEO’S PROFILE OF ROBINS SAID
HE HAD A GRADUATE DEGREE, WAS EMPLOYED IN A TECHNICAL
OR PROFESSIONAL FIELD, AND WAS MARRIED WITH CHILDREN. NONE OF THAT WAS TRUE. ROBINS SUED SPOKEO FOR VIOLATION
OF THE FAIR CREDIT REPORTING ACT WHICH ALLOWS VICTIMS
OF SO-CALLED WILLFUL VIOLATIONS TO RECOVER STATUTORY DAMAGES
OF BETWEEN $100 AND $1,000. A FEDERAL DISTRICT COURT
DISMISSED ROBINS’ SUIT FOR LACK OF STANDING
IN NOT PLEADING A SUFFICIENT INJURY-IN-FACT,
BUT THE NINTH CIRCUIT REVERSED THAT DECISION AND
ALLOWED THE CASE TO GO FORWARD. ERWIN, WHAT DID
THE SUPREME COURT DO? CHEMERINSKY: THE SUPREME COURT
IN A 6-2 DECISION REVERSED THE NINTH CIRCUIT
AND REMANDED THE CASE FOR FURTHER CONSIDERATION. JUSTICE ALITO WROTE THE OPINION
FOR THE COURT. HE SAID IN ORDER TO MEET THE
INJURY REQUIREMENT OF ARTICLE 3, THE INJURY HAS TO BE BOTH
PARTICULARIZED AND CONCRETE. HE FOUND THAT ROBINS
MET THE REQUIREMENT FOR PARTICULARIZED
INJURY BECAUSE HE HAD PERSONALLY
SUFFERED THE HARM. SHERRY: BUT THE COURT HELD
THAT THE NINTH CIRCUIT HAD FAILED TO CONSIDER
WHETHER HE ACTUALLY MET THE REQUIREMENT
OF A CONCRETE INJURY. A CONCRETE INJURY,
THE COURT SAID, IS AN INJURY THAT’S DE FACTO. IT ACTUALLY EXISTS. IT HAS TO BE REAL.
IT CAN’T BE ABSTRACT. AND THE COURT SAID IT’S
DIFFERENT–CONCRETENESS IS DIFFERENT FROM
PARTICULARIZATION, BUT THE COURT ALSO SAYS THAT
IT’S NOT NECESSARILY SYNONYMOUS WITH–WITH TANGIBLE. THERE CAN BE INTANGIBLE
BUT CONCRETE INJURIES. SO THE QUESTION WAS,
SPOKEO’S FAILURE TO FOLLOW PROPER PROCEDURES IN OBTAINING
THE INFORMATION MIGHT OR MIGHT NOT HAVE CAUSED
A REAL OR CONCRETE HARM, UH, AND SO THE COURT
REMANDED TO THE NINTH CIRCUIT FOR A DETERMINATION OF WHETHER
THE ALLEGED HARMS WERE IN FACT
SUFFICIENTLY CONCRETE. CHEMERINSKY: I THINK THIS IS
A DECISION THAT’S GONNA CREATE A GREAT DEAL OF CONFUSION
IN THE LOWER COURTS. THIS IS THE FIRST TIME
THE SUPREME COURT HAS EVER SAID THAT PARTICULARIZED AND CONCRETE
ARE DISTINCT REQUIREMENTS, EACH WHICH MUST BE MET. BUT THE COURT,
AS SUZANNE JUST SAID, DIDN’T OFFER A CLEAR DEFINITION WHAT IT MEANS FOR AN INJURY
TO BE CONCRETE. I DO THINK IT’S IMPORTANT THAT
THE SUPREME COURT REAFFIRMED THAT CONGRESS BY
[INDISTINCT] RIGHTS, EVEN RIGHTS THAT WOULD
OTHERWISE EXIST, THE INFRINGEMENT
OF THOSE RIGHTS ARE AN INJURY
SUFFICIENT FOR STANDING. CHANCE: AMERICAN NATIONALS
CAN SUE STATE SPONSORS OF TERRORISM
IN THE U.S. COURTS, BUT EVEN IF THEY WIN,
THEY OFTEN FACE PRACTICAL AND LEGAL DIFFICULTIES
ENFORCING THEIR JUDGMENTS. IN OTHER WORDS, THEY CAN WIN MONEY DAMAGES
FOR THEIR INJURIES, BUT THEY OFTEN HAVE
A HARD TIME GETTING PAID. SO TO HELP MORE THAN 100 OR– I’M SORRY, MORE THAN
1,000 PLAINTIFFS WHO SUED IRAN AND PREVAILED, CONGRESS ENACTED
THE IRAN THREAT REDUCTION AND SYRIA HUMAN RIGHTS
ACT OF 2012. THE LAW MAKES
A DESIGNATED SET OF ASSETS THAT ARE FROZEN IN U.S. BANKS AVAILABLE TO SATISFY JUDGMENTS
IN THAT SPECIFIC CASE IDENTIFIED BY NAME
AND DOCKET NUMBER IN THE LAW. THESE ASSETS AND THIS LAW
WERE THE FOCUS OF OUR FINAL DECISION–
BANK MARKAZI VERSUS PETERSON. BANK MARKAZI IS
THE CENTRAL BANK OF IRAN. IT ARGUED THAT THE LAW
VIOLATED SEPARATION OF POWERS BECAUSE IT USURPED
THE ROLE OF THE COURTS BY DIRECTING
A PARTICULAR RESULT IN THE PENDING
ENFORCEMENT PROCEEDING. SO WHAT WAS THE ACTUAL
QUESTION BEFORE THE COURT? CHEMERINSKY: THE ISSUE HERE
IS WHETHER THIS STATUTE IS A PROSPECTIVE
CHANGE IN THE LAW, IN WHICH CASE
IT’S CONSTITUTIONAL, OR IF IT’S CONGRESS DIRECTING
THE FEDERAL COURTS HOW TO DECIDE A SPECIFIC CASE, IN WHICH CASE
IT’S UNCONSTITUTIONAL. THE SUPREME COURT,
IN A 6-2 DECISION, WITH THE MAJORITY OPINION
BY JUSTICE GINSBURG, UPHELD THE CONSTITUTIONALITY
OF THE STATUTE. SHERRY: THAT’S RIGHT,
AND JUSTICE GINSBURG WROTE THAT THIS–THAT ALTHOUGH
THE CONSTITUTION BARS CONGRESS FROM TELLING COURTS
HOW TO APPLY PRE-EXISTING LAW
TO SPECIFIC CASES, CONGRESS CAN AMEND THAT LAW
AND THEN MAKE IT RETROACTIVE, AND THAT’S EXACTLY
WHAT THIS STATUTE DID. IT DIRECTED THE COURT TO APPLY A NEW STANDARD
TO A PENDING CASE, AND SHE WENT ON TO SAY THAT THE
STATUTE IS NOT UNCONSTITUTIONAL EVEN THOUGH THE NEW
LEGAL STANDARD APPLIED TO VIRTUALLY
UNDISPUTED FACTS AND IT WASN’T UNCONSTITUTIONAL
EVEN THOUGH IT PRESCRIBED A RULE FOR AN IDENTIFIED
SPECIFIC CASE. CHEMERINSKY: BUT THE DISSENT
SAW THIS AS CONGRESS DIRECTING THE FEDERAL COURTS AS
HOW TO DECIDE A SPECIFIC CASE, AND THAT VIOLATES
THE CONSTITUTION. SHERRY: I ACTUALLY THINK THE
DISSENT WAS RIGHT IN THIS CASE. I THINK THE STATUTE IS
EQUIVALENT TO A LAW THAT SAYS IN A LAWSUIT BETWEEN
A AND B, B WINS. WHAT THIS DECISION
MEANS IS THAT LITIGANTS–DISAPPOINTED
LITIGANTS CAN NOW PETITION CONGRESS TO CHANGE
THE RESULTS IN THEIR CASES AS LONG AS THEY DO SO DURING
THE PENDENCY OF THEIR APPEALS. CHEMERINSKY: WE DISAGREE
ON THIS ONE. I THINK CONGRESS ALWAYS
CAN CHANGE THE LAW AND THE NEW LAW WILL APPLY
TO ALL FUTURE CASES. THAT’S WHAT HAPPENED HERE. CHANCE: THANKS.
AND NOW, HOW THE COURT VIEWED
SOME FEDERAL STATUTES. WIGGINS: TWO DECISIONS NOW
INTERPRETING FEDERAL STATUTES, BOTH INVOLVING THE EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION, OR THE EEOC. IN CSRT VAN EXPEDITED
VERSUS EEOC, THE QUESTION WAS
WHEN CAN A DEFENDANT RECOVER ATTORNEY’S FEES
AS A PREVAILING PARTY UNDER TITLE VII. THE EEOC HAD FILED
A CLASS ACTION SUIT AGAINST CSRT, CHARGING
SEXUAL HARASSMENT ON BEHALF OF MORE THAN 250
FEMALE EMPLOYEES OF THE COMPANY. THE DISTRICT COURT DISMISSED
ALL BUT TWO OF THE CLAIMS ON A VARIETY OF
PROCEDURAL GROUNDS, INCLUDING THE EEOC’S FAILURE TO PROPERLY INVESTIGATE
ALL THE CLAIMS. THE DISTRICT COURT
THEN AWARDED CSRT $4 MILLION IN ATTORNEY’S FEES
AS THE PREVAILING PARTY. THE EIGHTH CIRCUIT COURT OF
APPEALS REVERSED THAT JUDGMENT, HOLDING THAT A DEFENDANT
CAN ONLY BE CONSIDERED A PREVAILING PARTY BY OBTAINING
A RULING ON THE MERITS. SO, ERWIN, HOW DID THE JUSTICES
COME DOWN ON THIS QUESTION? CHEMERINSKY: THE SUPREME COURT
UNANIMOUSLY REVERSED
THE EIGHTH CIRCUIT. JUSTICE KENNEDY
WROTE FOR THE COURT. HE NOTED THE COURT
PREVIOUSLY HAD HELD THAT A DEFENDANT CAN
RECEIVE ATTORNEY’S FEES IN A TITLE VII CASE. THE STANDARD IS THE DEFENDANT
CAN GET ATTORNEY’S FEES IF THE PLAINTIFF’S CLAIM
IS FRIVOLOUS, UNREASONABLE, OR GROUNDLESS, OR THE PLAINTIFF CONTINUES TO PURSUE
THE LITIGATION AFTER IT’S SHOWN THAT THE CLAIM IS FRIVOLOUS, UNREASONABLE,
OR GROUNDLESS. JUSTICE KENNEDY SAID
THERE’S MANY WAYS THAT A DEFENDANT CAN
WIN IN A LAWSUIT. IT DOESN’T TAKE A JUDGMENT
ON THE MERITS. HERE, WHERE ALL OF THE CLAIMS HAD BEEN DISMISSED
AGAINST THE DEFENDANT, IT WAS OBVIOUSLY
THE DEFENDANT PREVAILING. LEE: I THINK
IT OUGHT TO BE NOTED THE COURT HERE DIDN’T
ADDRESS THE QUESTION OF WHETHER THERE HAD TO BE
A PRECLUSIVE JUDGMENT IN ORDER FOR THE DEFENDANT
TO PREVAIL. THE COURT SAID THAT THAT ISSUE HAD NOT BEEN PROPERLY
RAISED BELOW. BUT I DO THINK WE CAN EXPECT IT
TO COME UP AGAIN IN FUTURE LITIGATION. WIGGINS: HOW IMPORTANT DO YOU
THINK THIS CASE WILL BE TO THOSE FUTURE CASES? CHEMERINSKY: I DON’T THINK THIS
CASE CHANGES THE LEGAL STANDARD BUT IT IS AN IMPORTANT VICTORY
FOR DEFENDANTS. IT CLEARLY HOLDS DEFENDANTS
CAN BE AWARDED ATTORNEY’S FEES UNDER TITLE VII
OR SIMILAR STATUTES EVEN WITHOUT A JUDGMENT
ON THE MERITS. WIGGINS: OK. OUR NEXT DECISION,
GREEN VERSUS BRENNAN, ASKED THE COURT TO DECIDE WHEN
THE STATUTE OF LIMITATIONS BEGINS TO RUN IN
CONSTRUCTIVE DISCHARGE CASES UNDER TITLE VII. MARVIN GREEN WAS A 35-YEAR-OLD
BLACK POSTAL SERVICE EMPLOYEE WHO BROUGHT A CLAIM
OF RACIAL DISCRIMINATION WHEN HE WAS PASSED OVER
FOR PROMOTION TO POSTMASTER
IN BOULDER, COLORADO. NOT LONG AFTER HE
BROUGHT THAT CLAIM, HIS SUPERVISORS ACCUSED HIM OF INTENTIONALLY DELAYING
THE MAILS, WHICH IS A FEDERAL OFFENSE. EVEN THOUGH
THE INSPECTOR GENERAL TERMINATED ITS INVESTIGATION
OF THE MATTER FOR INSUFFICIENT EVIDENCE, GREEN’S SUPERVISORS
CONTINUED TO THREATEN TO PROSECUTE HIM CRIMINALLY. FINALLY, GREEN
SIGNED A SETTLEMENT IN WHICH HIS SUPERVISORS
AGREED TO DROP THEIR EFFORTS TO PROSECUTE HIM, AND HE AGREED EITHER
TO TAKE A DEMOTION OR RESIGN, AND HE EVENTUALLY RESIGNED. EVAN, WHERE DOES THE STORY
GO FROM HERE? LEE: WELL, 41 DAYS
AFTER RESIGNING, BUT 96 DAYS AFTER SIGNING
THE SETTLEMENT AGREEMENT, GREEN CONTACTED
AN EEO COUNSELOR TO REPORT AN UNLAWFUL
CONSTRUCTIVE DISCHARGE. HE EVENTUALLY BROUGHT SUIT
IN THE FEDERAL DISTRICT COURT, WHICH WAS DISMISSED
ON THE GROUNDS THAT IT WAS UNTIMELY. THE COURT SAID THAT
UNDER THE STATUTE, THE EEOC HAD TO BE CONTACTED
WITHIN 45 DAYS, QUOTE, OF THE MATTER ALLEGED TO BE
DISCRIMINATORY, END QUOTE. AND ON THE MERITS, THE SUPREME
COURT RULED 7-1 THAT IN A TITLE VII
CONSTRUCTIVE DISCHARGE CASE, THE STATUTE OF LIMITATIONS
DOES NOT BEGIN TO RUN UNTIL THE EMPLOYEE RESIGNS,
AND I THINK ALSO VERY IMPORTANTLY,
THAT RESIGNATION OCCURS FOR PURPOSES OF THIS STATUTE WHEN THE EMPLOYEE GIVES
A FORMAL NOTICE OF RESIGNATION. CHEMERINSKY: JUSTICE SOTOMAYOR
WROTE THE OPINION FOR THE COURT, AND SHE SAYS THAT
ACTUALLY QUITTING IS AN ELEMENT OF
THE CAUSE OF ACTION FOR CONSTRUCTIVE DISCHARGE. SAID NOTHING IN TITLE VII
WAS MEANT TO CHANGE THAT. SAID HAVING THE STATUTE OF
LIMITATIONS COUNT IN THIS WAY FURTHERS THE REMEDIAL
SCHEME OF TITLE VII. I THINK IT’S AN IMPORTANT
VICTORY FOR PLAINTIFFS IN TERMS OF GIVING
A STATUTE OF LIMITATIONS THAT’S MOST FAVORABLE TO THEM. LEE: I AGREE,
AND I THINK THIS CASE CREATES A BRIGHT LINE
WHERE THERE PREVIOUSLY DID NOT EXIST ONE. WIGGINS: THANKS, EVAN.
THANKS, ERWIN. OUR NEXT PANEL WILL BE
REPRODUCTIVE RIGHTS AND RELIGIOUS FREEDOM. WHOLE WOMAN’S HEALTH
VERSUS HELLERSTEDT WAS ARGUABLY THE MOST SWEEPING
ABORTION RIGHTS DECISION BY THE COURT SINCE 1992’s
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA
VERSUS CASEY. WHOLE WOMAN’S HEALTH WAS
A CHALLENGE TO A TEXAS STATUTE THAT IMPOSED SEVERAL NEW
REQUIREMENTS ON ABORTION CLINICS IN THE NAME OF PROTECTING
WOMEN’S HEALTH AND SAFETY. AMONG OTHER THINGS,
THE LAW REQUIRED THE CLINICS TO MEET THE SAME
STANDARDS REQUIRED FOR AMBULATORY SURGICAL CENTERS AND REQUIRED DOCTORS PERFORMING
ABORTIONS AT THE CLINICS TO HAVE ADMITTING PRIVILEGES
AT A HOSPITAL LOCATED NO MORE THAN 30 MILES
FROM THE CLINIC. WHAT DID THE COURT DECIDE
ABOUT THIS STATUTE AND WHAT WAS ITS
REASONING, LAURIE? LEVENSON: WELL, BETH, THE COURT
DECIDED IN A 5-3 DECISION THAT THE TEXAS LAW
WAS UNCONSTITUTIONAL BECAUSE IT PUT AN UNDUE BURDEN ON A WOMAN’S RIGHT
TO HAVE AN ABORTION. BUT PERHAPS THE MOST IMPORTANT
THING ABOUT THE COURT’S RULING IS THAT IT IDENTIFIED
AND DETAILED THE COURT’S ROLE IN DETERMINING WHETHER
THIS IS AN UNDUE BURDEN ON A WOMAN’S RIGHT. JUSTICE BREYER WENT
POINT BY POINT THROUGH THE DISTRICT COURT
RECORD, SHOWING WHY HE BELIEVED
THAT THESE RESTRICTIONS DID NOT HELP AND SERVE
WOMEN’S NEEDS. HE POINTED OUT HOW
THE RISKS OF AN ABORTION ARE MUCH LOWER THAN THE RISKS
OF COMMON MEDICAL PROCEDURES THAT CAN BE DONE IN A DOCTOR’S
OFFICE OR EVEN IN A HOME. HE EVEN POINTED OUT
THAT AT ORAL ARGUMENT, TEXAS COULD NOT
IDENTIFY ONE WOMAN WHO ACTUALLY BENEFITED
FROM THE REQUIREMENTS IMPOSED BY THIS LAW. AND BY CONTRAST, HE POINTED OUT THAT THE COSTS OF
THIS NEW REQUIREMENT HAD LED TO THE CLOSURE OF DOZENS
OF ABORTION CLINICS IN TEXAS, MAKING IT MORE DIFFICULT
FOR WOMEN TO GET SAFE, LEGAL ABORTIONS. SHERRY: THIS CASE
DEFINITELY CLARIFIED THE UNDUE BURDEN STANDARD
LAID DOWN BY THE COURT AND CLARIFIED THAT
WHAT IT REQUIRES IS A COURT MUST
BALANCE THE BURDENS THAT A LAW IMPOSES
ON ABORTION ACCESS AGAINST THE BENEFIT THAT THE LAW
PROVIDES FOR WOMEN’S HEALTH, AND IMPORTANTLY,
AS LAURIE SAID, THE COURTS SHOULDN’T DEFER TO
LEGISLATURES ON THESE QUESTIONS BUT INSTEAD SHOULD
LOOK AT THE EVIDENCE THAT’S PRESENTED TO THE COURT. AND IN ADDITION TO BEING
AN IMPORTANT CLARIFICATION OF THE UNDUE BURDEN STANDARD AND OF THE COURT’S
OWN RESPONSIBILITIES, IT ALSO, I THINK,
SENDS A MESSAGE THAT THERE ARE 5 JUSTICES
ON THE CURRENT COURT WHO BELIEVE THAT WHILE STATES
DO HAVE A LEGITIMATE INTEREST IN SEEING THAT ABORTIONS ARE
PERMITTED–ARE DONE SAFELY, STATES CAN’T IMPOSE
RESTRICTIONS THAT ARE PRETEXTUAL AND THAT IMPOSE
A SUBSTANTIAL OBSTACLE IN THE WAY OF WOMEN’S
ACCESS TO ABORTION. THERE ARE SEVERAL STATES
WITH SIMILAR LAWS AND CHALLENGES HAVE BEEN
PENDING, WAITING THIS DECISION, AND I THINK IN MOST OF THOSE,
WE’LL NOW NEED A DETAILED FINDING OF FACTS THAT EXAMINE THE BENEFITS
AND THE BURDENS. CHEMERINSKY: JUSTICE GINSBURG
WROTE A SHORT CONCURRING OPINION WHICH EXPRESSED THE VIEW
THAT THESE MANY RECENTLY ADOPTED STATE LAWS,
THE SO-CALLED TARGETED RESTRICTION OF
ABORTION PROVIDER STATUTES, ARE ALL UNCONSTITUTIONAL. WIGGINS: OK.
OTHER THAN THE 4-4 DECISIONS RESULTING FROM
JUSTICE SCALIA’S DEATH THAT JOHN COOKE
MENTIONED EARLIER, IT’S HARD TO KNOW WHAT
THE EFFECTS HIS PASSING HAD ON THE WORK OF
THE COURT THIS TERM. BUT IN ZUBIK VERSUS BURWELL,
IT ARGUABLY LED TO A UNANIMOUS PER CURIAM OPINION REMANDING THE CASES
COLLECTIVELY HEARD UNDER ZUBIK FOR RECONSIDERATION. ZUBIK WAS A CHALLENGE,
OF COURSE, TO THE AFFORDABLE CARE
ACT’S REQUIREMENT THAT SOME RELIGIOUS
ORGANIZATIONS MUST SUBMIT A FORM TO TAKE ADVANTAGE
OF AN EXEMPTION FOR PROVIDING
CONTRACEPTIVE COVERAGE. THE RELIGIOUS ORGANIZATIONS
PROTESTED THAT EVEN SIGNING THE FORM
SUBSTANTIALLY BURDENED THEIR RELIGIOUS FREEDOM
IN VIOLATION OF THE RELIGIOUS FREEDOM
RESTORATION ACT. AFTER ORAL ARGUMENT, THE COURT
ASKED FOR ADDITIONAL BRIEFING ON POSSIBLE WAYS THAT
THE CONTRACEPTIVE COVERAGE COULD BE PROVIDED SEAMLESSLY WITHOUT VIOLATING THE
ORGANIZATION’S RELIGIOUS FREEDOM WHILE STILL SATISFYING
THE GOVERNMENT’S INTEREST. IN THEIR RESPONSES,
THE PARTIES CONCEDED THAT MIGHT BE POSSIBLE. IN THE DECISION IN ZUBIK,
THE COURT VACATED ALL THE JUDGMENTS BELOW
AND REMANDED THEM TO GIVE THE PARTIES
A CHANCE TO FIND A SOLUTION BASED ON THE NEW FACTS CONTAINED
IN THE ADDITIONAL BRIEFING. THE COURT WROTE THAT
IT WAS EXPRESSING NO VIEW ON THE MERITS
OF THE CASES AND IN PARTICULAR NOT DECIDING WHETHER THE ORGANIZATION’S
RELIGIOUS EXERCISE HAD BEEN
SUBSTANTIALLY BURDENED, WHETHER THE GOVERNMENT
HAS A COMPELLING INTEREST, OR WHETHER
THE CURRENT REGULATIONS ARE THE LEAST RESTRICTIVE MEANS
OF SATISFYING THAT INTEREST. THAT ASSURANCE NOTWITHSTANDING,
JUSTICES SOTOMAYOR AND GINSBURG WROTE A CONCURRING OPINION
TO WARN LOWER COURTS NOT TO CONSTRUE
THE PER CURIAM DECISION AS A SIGNAL ON WHERE
THE COURT STANDS. THEY NOTED THAT
THE COURT HAD ISSUED SIMILAR EXPLICIT
DISCLAIMERS BEFORE, BUT THAT SOME LOWER COURTS
HAD IGNORED THOSE INSTRUCTIONS. SO THEY ADMONISHED THE COURTS OF
APPEALS ON REMAND NOT TO MAKE THAT SAME MISTAKE. NEXT WE’RE GOING TO BRING YOU
A CONVERSATION I HAD RECENTLY WITH MICHELLE HARNER OF
THE UNIVERSITY OF MARYLAND
SCHOOL OF LAW ABOUT SOME OF THIS TERM’S
BANKRUPTCY DECISIONS. AFTER THAT, WE’RE GOING
TO TAKE A 5-MINUTE BREAK, AND THEN WHEN WE COME BACK,
WE’LL HAVE A CONVERSATION JIM HAD WITH JOHN THOMAS
OF GEORGETOWN LAW CENTER ABOUT TWO PATENT DECISIONS
THIS TERM. BUT FIRST, HERE’S
MY CONVERSATION WITH MICHELLE. HI, MICHELLE.
THANKS FOR BEING HERE AGAIN THIS YEAR TO TALK ABOUT
THE TERM’S BANKRUPTCY CASES. WE’RE GONNA BE COVERING
SPOKEO VERSUS ROBINS IN ANOTHER PANEL,
SO LET’S MOVE RIGHT INTO HUSKY INTERNATIONAL
ELECTRONICS VERSUS RITZ. THAT CASE, OF COURSE, CONCERNED
THE EXCEPTIONS TO DISCHARGE UNDER 523(A)(2) FOR DEBTS
ARISING OUT OF FALSE PRETENSES,
A FALSE MISREPRESENTATION, OR ACTUAL FRAUD. SO CAN YOU TELL US
A LITTLE BIT ABOUT THIS CASE AND WHAT THE ISSUE WAS? HARNER: ABSOLUTELY, AND
THANK YOU FOR HAVING ME AGAIN. SO THE HUSKY CASE DEALS
WITH A FACT PATTERN THAT’S VERY FAMILIAR TO US. BASICALLY, HUSKY SUPPLIED
GOODS TO CHRYSALIS. CHRYSALIS FAILED TO PAY
FOR THE GOODS. HUSKY ENDED UP WITH A CLAIM OF
$164,000. THEN MR. RITZ
ENTERS THE PICTURE. MR. RITZ ALLEGEDLY
THROUGH HIS CONTROL AND/OR OWNERSHIP OF CHRYSALIS,
TRANSFERRED CHRYSALIS’– CHRYSALIS’–THAT’S
A TONGUE-TIER– TO–ASSETS TO OTHER COMPANIES
OWNED AND/OR CONTROLLED BY MR. RITZ, LEAVING CHRYSALIS WITH NO ASSETS TO PAY
HUSKY’S CLAIM. HUSKY, THEN, NOT TOO HAPPY,
SUES MR. RITZ USING TEXAS LAW, AMONG OTHER
THINGS, ALTER EGO CLAIM TO TRY TO COLLECT $164,000
FROM MR. RITZ. MR. RITZ THEN FILES BANKRUPTCY. THIS IS LIKE, YOU KNOW,
CHESS HERE. AND THEN HUSKY SAYS, “FINE, “BUT OUR CLAIM IS
NON-DISCHARGEABLE “UNDER SECTION 523(A)(2)(A)
OF THE BANKRUPTCY CODE BECAUSE YOU’VE COMMITTED
ACTUAL FRAUD.” WIGGINS: SO WHAT DID
THE COURT DECIDE ABOUT THAT? AND WHAT DID THEY–I MEAN, HOW
DID THEY COME TO THEIR DECISION? HARNER: IT’S INTERESTING,
BECAUSE BOTH THE MAJORITY AND THE DISSENT USED
STATUTORY INTERPRETATION TOOLS TO GET TO THEIR
RESPECTIVE PLACES. AND I THINK THE MAJORITY OPINION
WRITTEN BY JUSTICE SOTOMAYOR REALLY TAKES
A STRAIGHTFORWARD APPROACH, LOOKING AT
THE STATUTE’S EVOLUTION, AND THE MAJORITY SAID
ACTUAL FRAUD WAS ADDED TO THE TERMS
“FALSE PRETENSES” AND “FALSE REPRESENTATIONS” IN THE 1978 CODE. SO ACTUAL FRAUD HAS TO MEAN
SOMETHING DIFFERENT THAN THOSE OTHER TWO TERMS. AND THE MAJORITY THEN
LOOKS TO COMMON LAW TO SAY, WELL, OF COURSE,
WE’VE ALWAYS INTERPRETED ACTUAL FRAUD TO MEAN FRAUDULENT
TRANSFER KINDS OF SCHEMES LIKE WE HAVE HERE. SO FOR THE MAJORITY,
THE BOTTOM LINE WAS A VERY NARROW
HOLDING, REALLY, IN THAT 523(A)(2)(A) IS BROADER THAN THE FIFTH CIRCUIT
INTERPRETED IT, AND SIMPLY MEANS
THAT ACTUAL FRAUD CAN BE SOMETHING MORE
THAN A MISREPRESENTATION. WIGGINS: SO WHERE
DO WE GO FROM HERE? DO YOU THINK THE COURT’S
GONNA BROADEN EXCEPTIONS TO THE DISCHARGE? HARNER: IT’S INTERESTING.
YOU KNOW, AND HERE I WOULD POINT US TO THE DISSENT
TO THINK ABOUT HOW FAR THE MAJORITY’S OPINION REACHES, BECAUSE THE DISSENT
AUTHORED BY JUSTICE THOMAS AGAIN LOOKS AT
THE STATUTORY LANGUAGE BUT USES MORE OF
A CONTEXTUAL APPROACH IN SAYING THAT I AGREE,
WE SHOULD THINK ABOUT THE COMMON LAW MEANING OF
TERMS IN A STATUTE, BUT NOT IF THEY DON’T FIT IN TERMS OF THE CONTEXT OF
THE ENTIRE STATUTORY LANGUAGE. AND FOR JUSTICE THOMAS,
THE PREAMBLE IN SECTION 523, WHICH SPEAKS TO MONEY,
PROPERTY, OR SERVICES OBTAINED BY ACTUAL FRAUD, POSED A PROBLEM
TO THE INTERPRETATION GIVEN ACTUAL FRAUD
BY THE MAJORITY. JUSTICE THOMAS SAYS
IT WAS NONSENSICAL TO THINK THAT
FRAUDULENT TRANSFER ACTS COULD CONSTITUTE ACTUAL FRAUD
FOR PURPOSES OF 523(A)(2)(A). INTERESTINGLY, IN FOOTNOTE 3, THE MAJORITY RECOGNIZES
THIS ISSUE, BUT PUNTS, SAYING THERE MAY BE SOME
FRAUDULENT TRANSFERS THAT DON’T CONSTITUTE
ACTUAL FRAUD WITHIN THE CONTEXT
OF 523(A)(2)(A), BUT WE THINK THERE ARE
SOME THAT COULD. SO THERE ARE GOING TO BE
A LOT OF ISSUES FOR THE FIFTH CIRCUIT ON REMAND
AND LOWER COURTS TO THINK ABOUT IN DETERMINING ACTUAL FRAUD
UNDER ITS COMMON LAW MEANING BUT WITHIN THE CONFINES
IN THE STATUTORY LANGUAGE OF 523(A)(2)(A). WIGGINS: OK. THANK YOU.
WELL, AT LEAST IT GIVES THE LOWER COURT SOME DIRECTION,
KNOW WHERE TO GO NOW BETWEEN THE FIFTH
AND THE SEVENTH’S ANALYSIS OF THE CASE
AND THE ISSUE. HARNER: ABSOLUTELY. WIGGINS: WE’RE GONNA BE REMISS
IF WE DON’T TALK SOME ABOUT PUERTO RICO
VERSUS FRANKLIN TRUST. AS YOU KNOW, THAT CASE
REALLY LEFT THE SOLUTION TO THE INSOLVENCY
CRISIS IN PUERTO RICO IN THE HANDS OF CONGRESS. CAN YOU TELL US A LITTLE BIT
ABOUT THAT CASE AND WHERE WE ARE NOW? HARNER: CERTAINLY.
SO IT’S INTERESTING YOU MENTION
THE HUMANITARIAN CRISIS FACING THE 3.2 MILLION
PEOPLE IN PUERTO RICO. THE DECISION BEFORE THE COURT
WAS REALLY ABOUT THE ECONOMIC CRISIS,
ALTHOUGH THE TWO, I THINK, ARE INTEGRATED, AND HERE WE HAVE THE JUSTICES, AT LEAST THE AUTHORING JUSTICES,
FLIPPING PLACES. SO JUSTICE THOMAS AUTHORS THE
MAJORITY OPINION IN PUERTO RICO. JUSTICE SOTOMAYOR
AUTHORS THE DISSENT. AND FOR JUSTICE THOMAS AGAIN, A VERY PLAIN-MEANING APPROACH
TO THE STATUTE AND IN THINKING ABOUT WHETHER
PUERTO RICO’S RECOVERY ACT, WHICH IT ADOPTED IN 2014,
COULD STAND, OR WAS IT PREEMPTED BY SECTION
903 OF THE BANKRUPTCY CODE. AND JUSTICE THOMAS
SAYS IN 1984, CONGRESS AMENDED SECTION 101.52
OF THE BANKRUPTCY CODE, WHICH DEFINES THE TERM “STATE,” AND IN THAT AMENDMENT,
JUSTICE THOMAS SAYS CONGRESS REMOVED PUERTO RICO
AND THE DISTRICT OF COLUMBIA FROM ONLY A SMALL SLIVER
OF THE BANKRUPTCY CODE, RIGHT? IT’S A STATE FOR EVERYTHING BUT
DEFINING WHO IS A DEBTOR FOR CHAPTER 9 PURPOSES,
OR FOR PURPOSES OF THE GATEWAY PROVISION, AS HE
CALLS IT, IN SECTION 109(C). SO, GIVEN THAT
VERY NARROW APPROACH TO THE AMENDMENT IN 1984
TO THE DEFINITION OF “STATE,” JUSTICE THOMAS SAYS
PUERTO RICO’S A, QUOTE, CAPITAL-S STATE FOR
ALL OTHER PURPOSES UNDER THE BANKRUPTCY CODE,
INCLUDING THE CHAPTER 9 PREEMPTION LANGUAGE
IN SECTION 903. AND ONCE YOU TAKE THAT APPROACH AND SAY IT’S A NARROW
EXTRAPOLATION OF PUERTO RICO FROM THE DEFINITION OF “STATE,” IT’S SOMEWHAT A PROBLEM
FOR PUERTO RICO, BECAUSE THE RECOVERY ACT
IS PREEMPTED BY 903, AND THAT MEANS IT’S CONGRESS’
ISSUE TO DEAL WITH THE ECONOMIC CRISIS
CURRENTLY FACING PUERTO RICO. AND THAT WAS PROBLEMATIC
FOR THE DISSENT. JUSTICE SOTOMAYOR,
I THINK, WAS INFLUENCED BY THE CRISIS FACING PUERTO RICO
AND TOOK MORE OF A CONTEXTUAL APPROACH,
SAYING YOU HAVE TO LOOK AT THE CODE AS A HOLISTIC
STATUTORY BODY, AND SAID IF WE’RE
TAKING PUERTO RICO OUT OF THE OPERATIVE PROVISION
OF CHAPTER 9 THROUGH THE DEFINITIONAL
SECTIONS, THEN NONE OF CHAPTER 9 APPLIES, AND SHE WOULD HAVE ALLOWED
THE LAW TO STAND. WIGGINS: OK.
WELL, THANK YOU. I THINK THAT’LL
DO IT FOR THIS YEAR AND HOPE TO SEE YOU
AGAIN NEXT YEAR. HARNER: THANK YOU SO MUCH.

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