Law in Plain English: UBS v. Union de Empleados

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: UBS v. Union de Empleados

Argument: N/A

Discussion: Union de Empleados ("UE") is a pension plan that own shares in closed-end investment funds ("the Funds") advised by UBS. UE brought a shareholder derivative action in federal district court against UBS. A shareholder derivative action permits a shareholder of a corporation to bring suit to enforce rights the corporation is unable or unwilling to enforce on its own behalf. UBS filed a motion to dismiss, and the District Court granted the motion because no pre-suit demand had been made on the Funds' boards of directors, and plaintiffs had failed in their complaint to state with particularity the reasons such a demand would have been futile. On appeal, the First Circuit reviewed the case de novo, and vacated the dismissal of the derivative claims. UBS argues that the proper standard of appellate review should be abuse of discretion. Abuse of discretion gives weight to the lower court's decision while de novo review considers the case as if it was being heard for the first time.

Issue: The question before the Court is whether, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit should have reviewed for abuse of discretion the District Court’s determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors.

Holding: N/A

Disposition: On August 26, the Supreme Court dismissed the case pursuant to Rule 46. According to Reuters, a July 9th ruling by a U.S. District Court judge in Puerto Rico indicated that the plaintiffs had sold their shares. As a result, they no longer had standing to pursue the claims at issue in the Supreme Court case and the judge dismissed the original lawsuit.

Law in Plain English: Adoptive Couple v. Baby Girl

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Update (8/18/13): For a full timeline of events in this case, see here.

For a previous discussion of this case, see here.

SCOTUSblog: Adoptive Couple v. Baby Girl

Matt and Melanie Capobianco with Veronica.

Argument: Apr 16, 2013 (Tr.) (Aud.)

Discussion: A South Carolina couple adopted the daughter of a young woman who was not a tribal member, but the child was considered to be an Indian because of her father’s tribal membership. The couple had to give up the child after raising her for two years, because the South Carolina Supreme Court ruled that the federal law took priority over state law.

Issue: The questions before the Court are (1) whether a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and (2) whether the ICWA defined “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

Holding: In a 5-4 decision, the Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded for further proceedings. The Court ruled that the Indian Child Welfare Act does not bar termination of the biological father's paternal rights because it applied to a child who was removed--the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. In other words, the provisions were not designed to apply to the circumstances presented by this case. As a result, the order returning the baby to the biological father was thrown out. It will be the job of the South Carolina Supreme Court to decide custody--although without the ICWA in the way, it seems likely that the adoptive parents will regain custody of the girl.

Update (6/29/13): In an order of June 28th, Justice Alito wrote that the mandate to the South Carolina Supreme Court will issue on July 5th (normally, such mandates happen 25 days after the original decision; the Capobiancos had applied with the Court for a faster timetime and Justice Alito agreed).

Update (7/17/13): In a 3-2 decision, the South Carolina Supreme Court  remanded the case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl, and thereby terminating Birth Father's parental rights. As a result, the court ruled that custody of Baby Girl shall be transferred to Adoptive Couple.

Update (7/24/13): In a 3-2 decision, the South Carolina Supreme Court ordered the adoption to be finalized.

Update (7/26/13): Refusing to give up, the birth father filed an application for a stay of the judgment of the South Carolina Supreme Court.

Update (7/30/13): On Wednesday, a family court in Charleston, S.C., plans to have a hearing Wednesday to decide how - not if - to transfer custody of Baby Veronica back to her adoptive parents.

Update (7/30/13): Attorneys for Adoptive Couple filed a response to the birth father's application for a stay of the judgment of the South Carolina Supreme Court.

Update (8/2/13): The Supreme Court denied the birth father's application for a stay.

Update (8/7/13): A South Carolina family court issued an enforcement order which found that Dusten Brown (the birth father) violated the terms of a previous court order by not showing up at the appointed time and place via the terms of the transition plan (Brown himself need not have shown up; Veronica's grandparents or other guardians could have done so). As a result, the court canceled the transition plan and ordered immediate custody of Baby Veronica to the Capobiancos. It also referred the matter to the Charleston County Solicitor's Office, the United States Attorney's Office, and Brown's commanding officer (Brown is in the Army National Guard).

Update (8/18/13): For a full timeline of events in this case, see here.

Supreme Court final week summary (end of term update)

Here are case summaries from today's three final opinions of the Supreme Court's term:

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question is a threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere. Here I predicted that Chief Justice Roberts would write the majority opinion.

Result: In a 5-4 decision written by Chief Justice Roberts, the Supreme Court ruled that Hollingsworth did not have standing to appeal. As a result, the Ninth Circuit's decision was reversed and remanded. The practical impact of this decision is that same sex marriage will be permitted in California, because the petitioners do not have standing to defend the law. This is a narrow ruling that will not apply outside of California.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning. Here I predicted that Justice Kennedy would write the majority opinion.

Result: In a 5-4 decision written by Justice Kennedy, the Supreme Court ruled that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The practical impact of this decision is that the federal government cannot deny benefits to same-sex couples.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision. Here I predicted that Justice Scalia would write the majority opinion.

Result: In a 9-0 decision written by Justice Scalia, the Supreme Court ruled that attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act. As a result, Sekhar's convicted was reversed.

Law in Plain English: Hollingsworth v. Perry

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the case is here.

Hollingsworth v. Perry

In 2008, Californians passed Proposition 8, which amended the California constitution to prohibit same sex marriage. Perry and her spouse and another same sex couple filed suit, alleging that Prop 8 violated the Fourteenth Amendment. California refused to defend the constitutionality, but the District Court allowed Hollingsworth and other residents, who had placed Prop 8 on the ballot, to intervene and defend the law. The District Court found that Prop 8 violated both the Due Process Clause, because the state had no compelling interest in denying the right to marry to same sex couples; and the Equal Protection Clause, because there was no rational basis for limiting the designation of marriage to opposite-sex couples. The results below, and the decision by California not to defend the law, raised two questions before the Court: first, whether Hollingsworth had standing to defend Prop 8; and second, whether the Equal Protection Clause of the Fourteenth Amendment prohibited California from defining marriage as the union of a man and a woman. It is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question. In a 5-4 decision, the Supreme Court ruled that Hollingsworth did not have standing to appeal. As a result, the Ninth Circuit's decision was reversed and remanded. The practical impact of this decision is that same sex marriage will be permitted in California, because the petitioners do not have standing to defend the law. This is a narrow ruling that will not apply outside of California.

Law in Plain English: Sekhar v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Sekhar v. United States

Sekhar threatened to expose an alleged extra-marital affair if a lawyer for the state of New York did not give legal advice that could benefit Sekhar’s financial interests. As a result, the government charged Sekhar with violating the Hobbs Act, a federal law enacted in 1946 that makes it a crime to take someone else’s property by the use of a threat of force or violence. A jury convicted Sekhar, and the Second Circuit affirmed. The question before the Court was whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under the Hobbs Act. In a 9-0 decision, the Supreme Court ruled that attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act. As a result, Sekhar's convicted was reversed. The practical impact of this decision is that the Hobbs Act will not be able to be used in similar circumstances to Sekhar's case.

Law in Plain English: United States v. Windsor

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the Windsor case is here.

United States v. Windsor

Windsor married her spouse in Canada, but New York (where she lived) did not recognize same sex marriage. After her spouse died, she filed suit, claiming that she was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act (DOMA) defines marriage as being between a man and a woman. Both the District Court and the Second Circuit decided in Windsor's favor, finding DOMA unconstitutional. Three months after Windsor's suit, the federal government also decided to stop enforcing DOMA, believing (as the courts in this case did) that DOMA was unconstitutional. The House of Representative's Bipartisan Legal Advisory Group (BLAG) moved to intervene on behalf of the United States. The results below, and this decision by the federal government, raised the questions before the Court: First, whether the federal government's decision not to defend DOMA took away jurisdiction from the Supreme Court to hear the case (BLAG argues that because the Second Circuit's decision in favor of Windsor was in line with the government's new position not to defend DOMA, the government prevailed and cannot appeal; the government argues otherwise); second, whether BLAG had standing to defend DOMA (because, arguably, their interest in seeing the law enforced does not rise to the level of a specific injury); and third, whether DOMA itself was unconstitutional by violating the Fifth Amendment's guarantee of equal protection. In a 5-4 decision, the Supreme Court ruled that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The practical impact of this decision is that the federal government cannot deny benefits to same-sex couples.

Reading the tea leaves on tomorrow's Supreme Court decisions

 EDITED (6/26/13): Correct on all three!

Here is the breakdown of opinions by author for this term:

9: Ginsburg

8: Thomas, Breyer, Alito, Sotomayor, Kagan

7: Roberts, Scalia, Kennedy

While there is no rule of the Court that requires an even distribution of opinions, it seems like that among tomorrow's three cases, we may see opinions from Chief Justice Roberts and Justices Scalia and Kennedy. If in fact those justices author tomorrow's opinions, I might expect something like this:

Hollingsworth v. Perry: Roberts

United States v. Windsor: Kennedy

Sekhar v. United States: Scalia

It seems unlikely that Justice Ginsburg would write a tenth opinion, but it's certainly possible. And there is nothing to prevent one of the other liberal justices from writing a ninth.

Opinions are announced in order of reverse seniority, so we should have a good idea of what to expect when we see the first decision.

Supreme Court final week preview and predictions (June 25 update)

There are 3 remaining cases in the Supreme Court's current term. The last opinions are expected to be handed down on Wednesday morning. Here are the important questions in each case:

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.

Supreme Court final week summary (June 25 update)

Here are summaries from today's three opinions. The Supreme Court will be back tomorrow morning for  the last opinion announcements (stay tuned for my preview later today). Click on the name of the case for a link to my "Plain English" page for that case.

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Result: In a 5-4 decision, Chief Justice Roberts wrote for the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Result: In a 5-4 decision, the Supreme Court ruled that the government’s demand for property from a land-use permit applicant must satisfy the Nollan / Dolan requirements even when it denies the permit (those cases held that the government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use.As a result, the Court reversed and remanded the case.The practical impact of this decision bolsters the rights of property owners to fight unreasonable demands held hostage by building permits.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Result: In a 5-4 decision, the Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded for further proceedings. The Court ruled that the Indian Child Welfare Act does not bar termination of the biological father's paternal rights because it applied to a child who was removed--the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. In other words, the provisions were not designed to apply to the circumstances presented by this case. As a result, the order returning the baby to the biological father was thrown out.

Law in Plain English: Koontz v. St. Johns River Water Management District

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Koontz v. St. Johns River Water Management District

Koontz sought a permit to develop a small portion of his land and in return, dedicate the rest of his land to the state for conservation. The St. Johns River Management District said they would grant Koontz his permit if he would improve land already on the District's property (at his own cost, estimated anywhere from $10,000 to $150,000). Koontz refused, and the District denied the permit. The questions before the Court were (1) whether it amounts to a "taking" to deny a development permit for failing to satisfy government-imposed conditions; and (2) whether the taking would violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue, from the Court's decision in Nollan v. California Coastal Commission) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project, from the Court's decision in Dolan v. City of Tigard) tests set out in the Court's prior takings decisions. In a 5-4 decision, the Supreme Court ruled that the government’s demand for property from a land-use permit applicant must satisfy the Nollan / Dolan requirements even when it denies the permit (those cases held that the government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. As a result, the Court reversed and remanded the case. The practical impact of this decision bolsters the rights of property owners to fight unreasonable demands held hostage by building permits.

Law in Plain English: Shelby County v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

See here for a previous discussion and more background on the constitutionality of the Voting Rights Act.

Shelby County v. Holder

In 2006, Congress reauthorized Section 5 the Voting Rights Act (VRA), which kept in place a pre-existing coverage formula in Section 4(b) which determined which jurisdictions are required see seek preclearance for changes to voting procedures. Shelby County, Alabama filed a lawsuit in the U.S. District Court for the District of Columbia, seeking a declaratory judgment that the Voting Rights Act (specifically, Sections 4(b) and 5) were unconstitutional. The District Court disagreed and granted summary judgment to the Attorney General. A divided Court of Appeals affirmed. The question before the Court was whether Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. In a 5-4 decision, the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

Clarence Thomas, affirmative action, and Brown v. Board of Education

From Justice Thomas's concurrence in Fisher v. University of Texas at Austin:

The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.  Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

...

My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

...

Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.

Supreme Court final week preview and predictions (June 24 update)

There are 6 remaining cases in the Supreme Court's current term. Here are the important questions in each case:

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.

Supreme Court final week summary (June 24 update)

Here are summaries from today's five opinions. The Supreme Court will be back tomorrow morning for more opinion announcements. Click on the name of the case for a link to my "Plain English" page for that case.

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Prediction: The convention wisdom (which I see no reason to depart from) suggests that the Court will rule 5-3 (Justice Kagan is recused) that the affirmative action policy violates the Fourteenth Amendment. Opinion author is likely to be Justice Kennedy.

Result: In a 7-1 decision (with Justice Kagan recused), Justice Kennedy wrote for the Court that because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. As a result, the case will return to the Fifth Circuit for another look. The practical impact of this decision is that the Court did not directly rule on the merits--this is a compromise decision that will be taken up again next term in a different case. 

Mutual Pharmaceutical Co. v. Bartlett: Did the the First Circuit Court of Appeals err when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products?

Prediction: Justice Alito will write for a 5-4 majority and reverse the First Circuit.

Result: Justice Alito wrote for a 5-4 majority that State-law design-defect claims that turn on the adequacy of a drug’s warnings are preempted by federal law under PLIVA.

United States v. Kebodeaux: Did the court of appeals err in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

Prediction: The Court will reverse the Fifth Circuit, finding that Congress did not have the authority to require the defendant to register as a sex offender.

Result: SORNA’s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause.

University of Texas Southwestern Medical Center v. Nassar: Does the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?

Prediction: A 5-4 majority will reverse and find that the retaliation provision requires a plaintiff to prove but-for causation.

Result: A 5-4 majority reversed and found that Title VII retaliation claims must be proved according to traditional principles of but-for causation.

Vance v. Ball State University: Does another employee who was responsible for assigning work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions qualify as "supervisor" which would subject the University to harassment claims?

Prediction: A 7-2 majority will affirm the lower court's decision.

Result: An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.

Law in Plain English: University of Texas Southwestern Medical Center v. Nassar

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

University of Texas Southwestern Medical Center v. Nassar

Nassar, is a physician who was employed by the University of Texas's Southwestern Medical Center. He complained about racial and religious discrimination, and arranged to become an employee of the Medical Center itself rather than the University (as a means of switching to a different supervisor). He then claimed that the University blocked his switch in retaliation. On the other hand, the University argued that because its agreement with the Medical Center required that all physicians be members of the University faculty, the retaliation could not be the so-called “but for” cause of his loss of the position. A jury found for Nassar, and the Fifth Circuit affirmed. The question before the Court was a matter of the standard of proof to apply to retaliation claims--whether the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action). In a 5-4 decision, the Supreme Court ruled that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). As a result, Nassar is required to meet a tougher standard to prove his claim. The practical impact of this decision is that employees will have a more difficult time proving retaliation because their claims will need to meet a higher standard.

Law in Plain English: Mutual Pharmaceutical Co. v. Bartlett

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Mutual Pharmaceutical Co. v. Bartlett

Bartlett took a generic version of Clinoril (sulindac, manufacturered by Mutual Pharmaceutical) and suffered serious injuries associated with a rare side effect. Generally, products liability claims are not preempted for branded pharmaceuticals (Wyeth v. Levine), but are preempted for generic versions (PLIVA, Inc. v. Mensing), because branded manufacturers can make changes to the product's lablel, but generic manufacturers cannot. Bartlett's case is similar to PLIVA in all respects except that PLIVA was a negligence claim, and Bartlett's is a strict liability claim. Bartlett filed claims in New Hampshire state court, which Mutual removed to federal court. The federal jury found for Bartlett, and the First Circuit affirmed, holding that federal law does not preempt state law. The rationale was that the Supreme Court had adopted a general no-preemption rule in Wyeth (for both failure-to-warn and design defect claims), and that PLIVA was a narrow exception to that rule for failure-to-warn claims against generic manufacturers, but not necessarily for design defect claims. The question before the Court was whether the First Circuit Court of Appeals erred when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products. In a 5-4 decision, the Supreme Court ruled that State-law design-defect claims that turn on the adequacy of a drug’s warnings are preempted by federal law under PLIVA. As a result, Bartlett's state law claim fails. The practical impact of this decision affirms that because federal law prevents generic manufacturers from changing their labels, they are prohibited from taking the remedial action required to avoid liability (and thus, can't be subject to such liability).

Law in Plain English: United States v. Kebodeaux

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

United States v. Kebodeaux

In 1999, Kebodeaux was convicted of statutory rape in whole in the military. He served his sentence and was discharged (and under no further control of the military or the federal government in general). In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA) that required registration of sex offenders, and he was convicted of failing to update his change of address when he moved. A panel of the Fifth Circuit affirmed his conviction, but it was reversed en banc. The questions before the Court were: (1) whether the court of appeals erred in conducting its analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted. In a 7-2 decision, the Supreme Court ruled that SORNA’s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause. The Court reasoned that, upon his release, Kebodeaux was still subject to the Wetterling Act and thus his release was condition.  As a result, Congress still had the power to require him to register. The practical impact of this decision affirms the power of Congress to exert control over offenders even after their sentences have been served.

Law in Plain English: Fisher v. University of Texas at Austin

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Fisher v. University of Texas at Austin

Any Texas resident who graduates from high school in the top ten percent of their class is automatically admitted to the University of Texas (the "Top Ten Percent Plan"). The remaining spots are filled by students based on a number of other factors, including race. When Fisher was denied admission, she filed a lawsuit alleging that considering race discriminated against her because is white. She alleged that the Top Ten Percent Plan already resulted in making the University a highly diverse institution, and that considering race among the factors for the remainder of students was unconstitutional racial balancing. The question before the Court was whether the University's use of race in admissions decisions as a means of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision (with Justice Kagan recused), the Supreme Court ruled that because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. As a result, the case will return to the Fifth Circuit for another look. The practical impact of this decision is that the Court did not directly rule on the merits--this is a compromise decision that will be taken up again next term in a different case.

Law in Plain English: Vance v. Ball State University

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Vance v. Ball State University

Vance was an African American employee of Ball State University. She complained about racially offensive comments by another employee who was responsible for assigning her work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions. Vance filed a Title VII complaint against the University. The question before the Court was whether Vance's fellow employee qualified as "supervisor" which would subject the University to the harassment claims. In a 5-4 decision, the Supreme Court ruled that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. As a result, Vance's claim against the University fails. The practical impact of this decision is that claims of vicarious liability will be subject to a stricter definition of "supervisor."

Supreme Court final week preview and predictions

There are 11 remaining cases in the Supreme Court's current term. Here are the important questions in each case:

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Prediction: The convention wisdom (which I see no reason to depart from) suggests that the Court will rule 5-3 (Justice Kagan is recused) that the affirmative action policy violates the Fourteenth Amendment. Opinion author is likely to be Justice Kennedy.

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Mutual Pharmaceutical Co. v. Bartlett: Did the the First Circuit Court of Appeals err when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products?

Prediction: Justice Alito will write for a 5-4 majority and reverse the First Circuit.

United States v. Kebodeaux: Did the court of appeals err in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

Prediction: The Court will reverse the Fifth Circuit, finding that Congress did not have the authority to require the defendant to register as a sex offender.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.

University of Texas Southwestern Medical Center v. Nassar: Does the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?

Prediction: A 5-4 majority will reverse and find that the retaliation provision requires a plaintiff to prove but-for causation.

Vance v. Ball State University: Does another employee who was responsible for assigning work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions qualify as "supervisor" which would subject the University to harassment claims?

Prediction: A 7-2 majority will affirm the lower court's decision.