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Argument analysis: Justices cautious about validating California court’s jurisdiction over claims by out-of-state litigants against out-of-state defendants
Tuesday morning’s argument in Bristol-Myers Squibb v. Superior Court of California brought the justices a case at the intersection of class actions and personal jurisdiction. The case involves litigation by several hundred individuals from 33 states (many, but not all of them, from California) for injuries associated with the Bristol-Myers drug Plavix.
The question for the justices is whether California courts have the authority to adjudicate the claims brought against Bristol-Myers by individuals from other states. Although Bristol-Myers has extensive contacts with California, nothing about the claims of these particular plaintiffs involves California: Bristol-Myers did not develop or manufacture the drug in California and there is no reason to think that marketing, promotion or distribution in California was involved in the injuries of the out-of-state plaintiffs. The only way in which their claims relate to California is that the marketing and promotion of the pharmaceutical was conducted on a nationwide basis: The same advertising and distribution arrangements that reached the out-of-state plaintiffs were the ones that reached the in-state plaintiffs (who plainly can sue in California courts).
The justices were fully engaged, with pointed questions for advocates on both sides. The biggest problem for the defendant Bristol-Myers (represented by Neal Katyal) was the prospect of “piecemeal litigation,” a theme Justice Sonia Sotomayor reiterated throughout the argument. Her concern was that a constitutional rule preventing one forum from adjudicating all the claims against a single defendant would cast a shadow over commonplace procedural devices such as the class action and multidistrict litigation.
Katyal’s answer was that the rules for due process in federal courts and state court are quite different, emphasizing that federal courts, founded on national sovereignty, have an easy justification for nationwide service of process and the like, while state courts, founded on the limited territorial sovereignty of any particular state, have a much less easy time justifying the exercise of jurisdiction for nonlocal claims involving nonresidents. Justice Anthony Kennedy plainly agreed with that point, commenting that “there’s a different set of criteria [that] you apply” when assessing due process concerns at the two levels; “[t]he States are limited in their [ability to exercise] jurisdiction … nationwide, the Federal government isn’t.”
But Sotomayor was far from satisfied. As she stated, “I have no idea how you draw that [state-federal] line.” Sotomayor’s questioning was particularly pointed during the presentation of Rachel Kovner, an assistant to the U.S. solicitor general who argued in support of Bristol-Myers. For example, positing a hypothetical about a foreign defendant, Sotomayor pointed out that “[u]nder your theory, [a] foreign corporation might be sued in the particular State in which an injury occurred. But since it has no home State in the United States, that means that in that situation, there’s no place for plaintiffs to come together and sue that person, correct?” Similarly, returning to her concern about the need for efficient nationwide litigation, she asked Kovner: “If due process says that you can’t hale someone into a court with which they’ve had no contacts, how do you justify the many criminal statutes we have – RICO, CERCLA, there’s a whole bunch of them – that permit the joinder of all of these defendants in one indictment?”
Parallel to that problem was a “so what’s the big deal” theme, put most clearly by Justice Elena Kagan. All agree that Bristol-Myers is subject to suit in California at the behest of the hundreds of California residents who used Plavix, and all agree that Bristol-Myers can hardly be surprised at the location of that litigation given its marketing and distribution in the state. Given those points, Kagan asked, “why is it unfair to glom on Texas claims and New York claims to the California claims, once we already have a mass action which will have multiple jury trials? … [Y]ou already know because this is … nationwide marketing … that you’re subject to jurisdiction in any of the 50 States.”
That’s not to say that it was smooth sailing for Thomas Goldstein (appearing on behalf of the non-resident plaintiffs, trying to preserve the California forum). Several of the justices seemed firmly set against his argument that Bristol-Myers’ contacts with California residents should have any weight in assessing its vulnerability to a California suit brought by nonresidents.
So, for example, one group of justices thought his argument failed to give due weight to the states outside California. In Justice Anthony Kennedy’s view, Goldstein was offering “a very patronizing view of federalism. California will tell Ohio ‘Oh, don’t worry, Ohio. We’ll take care of you.’ That’s … not the idea of the Federal system. The Federal system says that States are limited.” In the same vein, Kagan asked what Goldstein had to say “about the interest of the State the Bristol-Myers resides in? In other words, they might have an interest in not having their citizens haled into court against their will in another part of the country.”
More generally, Kagan seemed to find Goldstein’s proposed due process framework inconsistent with her understanding of the cases. She likened his argument to a Rube Goldberg arrangement in which “the claim relates to another claim that relates to contacts with the forum.” In her view, by contrast, the law requires a direct relationship between the plaintiff and the defendant’s contacts with the forum:
I’m missing what the relationship is between an Ohio plaintiff’s claim and the defendant’s contacts with the forum that doesn’t go through another claim…. But I guess what I’ve always thought that our personal jurisdiction cases require is … something like … [t]he plaintiff’s claim relates to or arises out of the defendant’s contacts with the forum State. … And I just want you to tell me how an Ohio plaintiff’s claim arises out of or relates to the defendant’s contacts with California.
Following up on that point with similar skepticism, Justice Stephen Breyer at one point asked “what is it I say in a single sentence that … make[s] it clear to that defendant why he is here?”
In response, Goldstein pointed to the role of McKesson – the California-based distributor through which Bristol-Myers distributed much (though not all) of its Plavix sales. McKesson’s role as a distributor leaves it a defendant alongside Bristol-Myers with respect to many of the out-of-California plaintiffs. Because McKesson is based in California, California plainly has the authority to adjudicate all of the claims of nonresidents against McKesson. Picking up on an earlier interchange between Justice Ruth Bader Ginsburg and Kovner, in which Kovner had acknowledged that under Bristol-Myers’ theory, there might be no other “place where these plaintiffs could sue McKesson as well as Bristol-Myers,” Goldstein suggested that the role of McKesson provided yet another reason why this particular case could be adjudicated in California. That prompted a curt rejoinder from Justice Neil Gorsuch, who found it “a very fact-specific argument.” Gorsuch went on to add that “we took this, I thought, to decide whether we … permit this sliding scale business that California engages in, as a legal matter.” When Goldstein responded that McKesson’s role was integral to the lower court’s analysis and that it would be “very confusing to the lower courts to simply cast it aside,” Gorsuch retorted: “What’s confusing, though, about simply saying ‘here’s the correct test, reverse, remand, go apply the correct test’?”
The most difficult portion of Goldstein’s presentation came when he suggested (echoing Kagan’s point from earlier in the morning) that California jurisdiction is made more palatable by the presence of several hundred indisputably local claims involving local residents. The implicit suggestion of a balancing test involving the number of local residents struck a raw nerve with Chief Justice John Roberts, who interjected that “we’re dealing with a jurisdictional rule, and when we do that, we want the rules to be as simple as possible. … [Y]ou’re articulating a rule that [governs] businesses trying to figure out where to do business and plaintiffs where to sue and courts whether it’s [permissible]. Your rule depends upon some line between [a] handful and … hundreds.”
Then, when Goldstein tried to defend that line, Kagan brusquely cut him off, arguing that Goldstein’s comments to Roberts contradicted his earlier discussion with her:
It seems to me, on your theory, it could be zero California plaintiffs, because here’s what you told me. You told me that the reason that … an Ohio citizen’s claim arises out of the contacts in California is because the contacts in California are really nationwide contacts. And if that’s so, it’s met regardless of whether there are any California plaintiffs or not.
Somewhat surprisingly, it was only near the end of the argument that the discussion turned to the problem of specific and general jurisdiction that occupied so much of the briefing. Responding to the interchange with Roberts and Kagan by acknowledging some tension between his position and some of the court’s recent cases, Goldstein suggested that it would make sense for the court to adjust the details of its rules for specific jurisdiction (a state’s power to hear a case based on its connection to that particular dispute, the power at issue here) to accommodate its marked narrowing in Daimler AG v. Bauman of rules for general jurisdiction (a state’s power to hear a case based on its connection to the defendant). Raising that topic got the attention of Justice Ruth Bader Ginsburg (the author of the Daimler opinion), who pointedly remarked that “[w]hat you’re suggesting is that the Court was wrong in … Daimler” and added that this case could be viewed as “an attempt to reintroduce general jurisdiction, which was lost in Daimler, by the back door.” As noted here, the discussion of Daimler continued during the next hour’s argument in BNSF Railway Co. v. Tyrrell, in which several justices seemed set on reaffirming or extending Daimler. To the extent that same intuition carries over to this case, it poses a challenging hurdle for the plaintiffs.
At the end of the day, the argument makes it clear that the justices will tread cautiously here, recognizing the broad systemic implications of pronouncements about the constitutional limits on judicial authority. The combination of caution with the intricate framework of the relevant cases suggests that we will be waiting several weeks for a resolution in this one.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]
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In today's edition, we look back at the progress made during the first two years of the What Works Cities partnership, examine how HHS is using data to save huge sums, share our concern about the Justice Department's efforts to keep some data closed, and more…states and cities
- Two years working towards more open, data driven cities. Sunlight's Stephen Larrick shared our progress on the What Works Cities initiative, two years in. "Over the past two years, Sunlight has made significant headway in helping cities build the public policy infrastructure for data transparency…We’ve supported cities in designing this infrastructure to be responsive to public feedback and ultimately accountable to the public interest. We will expand this support in 2017 and beyond." Read the whole story on the Sunlight blog.
- Can NYC become a sanctuary city for data privacy? "The New York City government is looking into ways to enforce stricter data privacy laws in the mold of the recently-scrapped FCC rules governing how internet service providers collect, store, and sell user information. The move sets New York City up to become a sanctuary for citizens looking for a little more privacy online." (Civicist)
- Watchdogs struggle to monitor open records threats at the state level. "In many states in the Union, the only watchdogs are volunteers who monitor bills as side projects and the editors of the local newspapers whose continued operations are under an existential threat." Deirdra Funcheon digs into the problem on the Sunlight Foundation blog.
- A little reporting can go a long way in under-covered areas. As this on investigative reporting in East St. Louis, Illinois shows energetic local reporting is an increasingly rare, but vital resource for small communities around the country. (Columbia Journalism Review)
- Health and Human Services uses data to identify fraud and save huge sums. "With access to petabytes’ worth of data housed within the Centers for Medicare and Medicaid and newfound analytic tools to delve into it, officials from the Department of Health and Human Services were able to team with the FBI and Justice Department in a $1 billion fraud takedown—the largest in Medicare’s history." (Nextgov)
- Seattle Times Editorial Board endorses the OPEN Government Data Act. "Who knows what else could be created if nearly all government data were routinely available? Let’s find out by passing the Open Government Data Act." (Seattle Times) We agree and hope that newspapers around the nation join in supporting the bill.
- ICE should comply with FOIA, release data on immigration enforcement cooperation. Sunlight joined a coalition of more than 50 organizations in signing a letter calling on Immigration and Customs Enforcement "to comply with the legal obligations under the Freedom of Information Act (FOIA), and fully disclose information on immigration enforcement cooperation between federal and non-federal law enforcement agencies." Read the full letter at OpenTheGovernment.org
- How governments exploit loopholes to avoid freedom of information. "All of which means that despite specific directives from the former president and attorney general, and transparency efforts in Congress and state legislatures, agencies from the Department of Defense down to the local city clerk's office frequently and increasingly find ways to use the rules in the service of de facto censorship. Given that the U.S. sets the standard for public document availability, that is discouraging and doubtless prevents crucial stories from seeing the light of day." Jason Leopold writes on the Committee to Protect Journalists blog.
- White House refuses to comply with Oversight's Flynn document request. Earlier this month, the White House refused to comply with a request from the House Oversight and Government Reform committee for documents related to former National Security Advisor Michael Flynn. The committee is looking into Flynn's dealings with Russia and its chairman and ranking member appear in agreement that he may have broken the law by failing to disclose certain dealings. (Bloomberg)
- Watchdogs focus on Trumps ethics and transparency. "Donald Trump won the presidency back in November, but for many liberal organizations, the battle continues. A loose network of lawyers and watchdogs has dug in to scrutinize issues involving the Trump administration's ethics and transparency." (NPR) DC has always needed open government watchdogs to protect and defend transparency accountability and democracy, but the Trump White House is testing the immune systems of our democracy.
- Justice Department defends removal of animal abuse data. "The Justice Department is mounting a legal defense of one of the most-publicized counter-transparency moves of the new Trump administration: the Agriculture Department's decision to take offline a massive set of records on enforcement of laws against animal abuse." Now, despite previous assertions by the Agriculture Department that they had a legal obligation to do so, DOJ is arguing that the data did not have to be put online in advance of formal FOIA requests. (POLITICO) Our take? This a deeply troubling argument that further extends that anti-transparency record this administration has established in its first 100 days, in this case elevating saving people who abuse animals from public embarrassment and sanction over the public's right to know whether our government is taking action to inspect facilities and enforce violations.
- Former Obama official says IT modernization likely an "imperative" for Trump. "In a conversation with FedScoop, former Social Security Administration CIO Rob Klopp predicted that the Trump administration probably will elevate IT modernization higher than the Obama administration already did…" while pushing agencies to fund initiatives from their own capital budgets. (FedScoop)
- The State Department's promotion of Mar-a-Lago drew concern and criticism from ethics watchdogs. As John Wonderlich told NBC News and MSNBC, it doesn't matter that the context for the posts was President Trump's meeting with China's Xi Jinping. "Publishing promotional materials for the President's private business is clearly inappropriate, whether he is using it for official business or not," he said. "There is only one White House. If you're telling the story of Mar-a-Lago, it's the president's private business." (NBC News and MSNBC)
- #TCampAZ is coming up on May 22 in Phoenix. Learn more on Facebook and get your tickets here! This one-day unconference will bring together the government representatives, developers and journalists to solve problems relating to civic data access. TCamp participants design the agenda, present their ideas and dive into the challenges, success stories and new possibilities during morning and afternoon breakout sessions. It is being hosted by the Arizona Center for Investigative Reporting with key partners including Sunlight, Galvanize, and the Institute for Digital Progress.
- April 26th, 6:00 PM: "Participatory Organizing: From Co-Op to Network to Mass Movement" in Washington, DC. The OpenGov Hub is hosting a co-created workshop on collaborative culture and non-hierarchical organizing. We combine storytelling and participation to learn together about democratic, bottom-up organizing at different scales: from co-ops, to networks, cities and nations. We'll offer some practices and tools that have helped us, and discover the intelligence in the room too. Learn more and register here.
- April 27th, 7:45 AM, DATA Act Breakfast "Spending Data Unleashed", in Washington, DC. "The Data Coalition and Booz Allen Hamilton invite you to a breakfast panel discussion for a front-row seat on the first fruits of the DATA Act. Join us on Thursday, April 27th, at the Booz Allen Hamilton Innovation Center." Learn more and get your tickets here.
- April 28th, 11:00 AM: Digital Inclusion Asset Mapping, Connect Chicago Meetup in Chicago, Illinois. "At the next Connect Chicago Meetup we will break into working groups to co-build a better shared inventory of public digital inclusion resources and assets." Learn more here.
- May 6th: Sustainable Development Goals Data Archive-a-thon in Washington, DC. The SDG Data Archive-a-thon is an opportunity for programmers, archivists, scientists and volunteers of all kinds to help preserve publicly accessible federal data resources in the public interest. The goal of this event is to archive the datasets used to report on the SDG indicators and to ensure they remain accessible to the public online. This event is hosted by the Center for Open Data Enterprise. Learn more and register to participate here.
- May 17th and 18th: Reboot Congress 2017 and the Kemp Forum in Washington, DC. "Held in the shadow of the U.S. Capitol, Reboot Congress 2017, is an invite-only conversation that will bring together a dynamic mix of problem solvers – civic tech innovators, engineers and designers, elected officials, senior staffers, policy experts, and other stakeholders working to modernize Congress." Learn more here.
- May 17th: The 2017 Door Stop Awards in Washington, DC. "Lincoln Network and The OpenGov Foundation are joining forces to present the 2017 Door Stop Awards for Congressional Innovation and Transparency. Awards will be presented on May 17, 2017 in Washington, D.C. at an evening party as part of Reboot Congress." Learn more here.
- May 19th and 20th: Global Legislative Openness Conference in Kyiv, Ukraine. "This 2-day event is hosted by the Verkhovna Rada of Ukraine, organized by the Legislative Openness Working Group of the Open Government Partnership and Open Parliament Initiative in Ukraine. The event will convene leading legislators, government officials, and civil society representatives to consider how legislative openness can strengthen public trust in representative institutions and build a responsive, 21st century legislature. In addition, the conference will explore how parliaments can best leverage the Open Government Partnership's new legislative engagement policy to develop and implement legislative openness plans and commitments." Learn more here.
- June 8th and 9th: Personal Democracy Forum 2017 in New York City. "The annual flagship conference brings together close to 1,000 top technologists, campaigners, hackers, opinion-makers, government officials, journalists, and academics for two days of game-changing talks, workshops, and networking opportunities to celebrate the power and potential of tech to make real change happen." Learn more about #PDF17 and get your tickets here.
- September 11th and 12th: TicTec@Taipei in Taipei. "TICTeC@Taipei is the first ever conference about the influence of civic tech to be held in Asia. We’ve invited members of academia, business, politics, NGOs, education to participate, and discuss their research. We hope through this event, we can build a global network of civic tech enthusiasts." The event is being held during #CivicTechFest 2017. Learn more, submit a session proposal, and register to attend here.
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Today the court hears oral argument in two cases. The first is Amgen Inc. v. Sandoz Inc. (consolidated with Sandoz Inc. v. Amgen Inc.), a complex case involving rules for the licensing of biosimilars. John Duffy previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Gerard Salvatore also provides a preview. At Written Description, Katie Mladinich surveys the case, noting that the Federal Circuit quoted Churchill “in describing the statute as ‘a riddle wrapped in a mystery inside an enigma,’” and that the “Supreme Court is now faced with unraveling this riddle.” The second argument today of the day is in Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe had this blog’s preview. Krsna Avila and Nicholas Halliburton preview the case for Cornell.
Yesterday the court heard oral argument in BNSF Railway Co. v. Tyrrell, in which the justices considered the contours of personal jurisdiction for lawsuits brought under the Federal Employers’ Liability Act. Amy Howe analyzes the argument for this blog. In Supreme Court Brief (subscription required), Tony Mauro reports that the argument “appeared inconclusive,” yielding “no clear sign that the high court would clarify the jumbled rules of jurisdiction.”
There was an unusual soundtrack to yesterday’s first argument: the chime of a cell phone, which turned out to belong to Justice Stephen Breyer. Mark Walsh reports on the unaccustomed interruption for this blog. Additional coverage comes from Robert Barnes in The Washington Post, who notes that “[e]lectronic devices are strictly forbidden in the courtroom, even for the lawyers who are arguing cases.” In The National Law Journal (subscription or registration required), Tony Mauro reports that the “78-year-old justice was clearly upset with himself, and later was seen holding his head and shaking it.”
Yesterday the justices issued a unanimous opinion in Lewis v. Clarke, holding that a tribe’s sovereign immunity does not extend to a tribal employee sued in his individual capacity. Todd Henderson analyzes the opinion for this blog. At Stanford Law School’s Legal Aggregate blog, Gregory Ablavsky observes that “the decision treats tribal sovereign immunity seriously and legitimately—a small but important accomplishment, given that in previous opinions the Court upheld precedent only while holding its nose, denigrating tribal sovereign immunity as an ‘accident’ and expressing ‘a fair bit of sympathy’ for critiques.”
On Monday, the court heard argument in Davila v. Davis, in which the justices will decide whether ineffective assistance of counsel in a state habeas proceeding excuses a defendant’s failure to raise an underlying claim of ineffective assistance of appellate counsel. Steve Vladeck analyzes the argument for this blog.
At PrawfsBlawg, Howard Wasserman discusses Justice Sonia Sotomayor’s dissent from the court’s decision on Monday to deny review of a lower court’s ruling granting qualified immunity on summary judgment to a police officer who was sued for shooting a suspect, observing that the dissent “highlights the Court’s failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers.” At Vox, German Lopez notes that, in Sotomayor’s view, a summary judgment ruling like this one is “one of the biases in the legal system that may let cops get away with excessive use of force — by slanting the system in favor of the police officer.”
- At Crime and Consequences, Kent Scheidegger discusses Monday’s argument in McWilliams v. Dunn, in which the justices will decide whether an Arkansas defendant in a capital case whose mental health was at issue was entitled to assistance from a psychiatrist independent of the prosecution, concluding that “the Supreme Court may well decide that the Ake precedent is ambiguous, the Oklahoma court’s decision is not an unreasonable application of it, and that is all that Congress has authorized a federal habeas corpus court to decide.”
- At the National Council of State Legislatures’ blog, Lisa Soronen looks at Nelson v. Colorado, in which the justices held last week that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction; she notes that this “is one of those rare cases where the Supreme Court invalidates a state law but no other states have anything identical or similar.”
- A Heritage Foundation podcast features a discussion of Justice Neil Gorsuch’s arrival on the Supreme Court bench.
- At Empirical SCOTUS, Adam Feldman examines data suggesting that the “recent consistency of Justice Thomas’ dissents harkens back to one of history’s strongest proponents (and one of the most regular writers) of the dissenting opinion, Justice William Orville Douglas.”
Remember, we rely exclusively on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.
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The petition of the day is:Aksu v. California 16-1009
Issue: What is the standard by which appellate courts review a trial court’s holding that a defendant voluntarily consented to a warrantless search for Fourth Amendment purposes.
The U.S. Government Publishing Office (GPO) partners with the Library of Congress to release the digital version of the bound Congressional Record from 1961-1970 on GPO’s govinfo (www.govinfo.gov). This release covers debates and proceedings of the 87th thru the 91st Congresses. Spanning approximately 380,000 Congressional Record pages, this era covers historical topics such as:
- The Administrations of Presidents John F. Kennedy, Lyndon B. Johnson, and the first two years of the Administration of President Richard M. Nixon
- The Civil Rights Era
- The Vietnam War
- The Space Program and Moon Landing
- Legislation of the Great Society and the War on Poverty, including:
Civil Rights Act of 1964
Voting Rights Act of 1965
Fair Housing Act of 1968
Medicare and Medicaid
Economic Opportunity Act of 1964
Immigration Act of 1965
Elementary and Secondary Education Act of 1965
Endangered Species Act of 1966
Public Broadcasting Act of 1967
“This latest digital release of the Congressional Record now gives the public easy access to the historic debates of Congress from the 1960s via smartphones, tablets, laptops, and personal computers,” said GPO Director Davita Vance-Cooks. “GPO is honored to partner with the Library of Congress to continue to meet the needs of Congress and the American people.”
Today the Supreme Court held that the sovereign immunity of Indian tribes does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party in interest.”
Lewis v. Clarke involved a run-of-the-mill car accident: The plaintiffs, Brian and Michelle Lewis, citizens of Connecticut, were driving on an interstate highway outside the boundaries of the Mohegan Reservation when they were rear-ended by the defendant, William Clarke, also a citizen of Connecticut. Clarke was an employee of the Mohegan Tribe, however, and the accident occurred while he was driving customers to the tribe’s casino.
The Lewises sued Clarke in Connecticut state court for damages resulting from the accident. Clarke moved to dismiss the lawsuit, arguing that he was cloaked in the tribe’s sovereign immunity because he was acting as a tribal employee or, in the alternative, because the tribe had agreed to indemnify him for any damages arising from his official acts in furtherance of the tribe’s interests.
The Connecticut trial court dismissed the suit on the ground that the remedy the plaintiffs sought — money damages from Clarke — did not, as today’s opinion put it, “affect the Tribe’s ability to govern itself independently.” The Supreme Court of Connecticut reversed, holding that permitting a plaintiff to overcome tribal immunity simply by styling his complaint as against the defendant in an individual capacity would render tribal immunity a nullity.
A unanimous Supreme Court reversed, in an opinion written by Justice Sonia Sotomayor. The court concluded that there is a readily discernible difference between suits in an individual capacity and those in an official capacity, only the latter of which are subject to sovereign immunity. Drawing on familiar actions, like a Bivens action or a Section 1983 suit under federal law, the court reasoned that a relatively bright line can be drawn between suits against officials acting in their official capacities and officials acting as individuals. For instance, the court noted that in the former case, if the official being sued were replaced, perhaps because of a change in administration, the suit would proceed against the new office-holder, while in the latter case, the defendant would remain the same. Addressing Clarke’s second contention, the court concluded that “[t]he Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign.”
In reaching this straightforward but somewhat arbitrary conclusion, the court was essentially leveling the playing field between states and tribes. All agree that if Clarke were an employee of Connecticut instead of the Mohegan tribe, the case would be an individual one, and there would be no sovereign immunity. The decision in this case stands for the proposition that tribal immunity is no greater than state immunity. That seems right, both as a matter of history and logic.
Although the details of state and tribal sovereignty differ somewhat here and there, depending on the area of law or statute in question, there is no reason that sovereign immunity rules should differ. Whatever the basis for these rules, there is nothing about tribal sovereignty that makes them cut one way or the other. Under the landmark ruling in Montana v. United States, the boundary of core tribal jurisdiction does not extend “beyond what is necessary to protect tribal self-government.” As noted above, the lower court, whose opinion was effectively reinstated by the Supreme Court’s holding, found that nothing in this case implicated the ability of the tribe to govern itself.
Justice Clarence Thomas and Justice Ruth Bader Ginsburg concurred separately, although their reasoning was similar. Both wanted the case decided on simpler grounds — Thomas on the ground that the conduct was off-reservation and of a commercial nature, and this defeated any immunity claims, and Ginsburg on the ground that the conduct was off-reservation and involved a non-tribal member.
In essence, both wanted the court to revisit its 1988 decision in Kiowa Tribe v. Manufacturing Technologies and its 2014 decision in Michigan v. Bay Mills Indian Community (in which both Thomas and Ginsburg dissented). These cases hold that tribal immunity can extend beyond reservation land, even in commercial cases.
The court declined to reconsider these precedents or other core issues of the scope of tribal sovereignty (such as whether there should be any separate tribal sovereignty). Although recent opinions have teed up these questions, it is possible that the court viewed a simple car accident between two non-tribal members occurring off the reservation as a poor vehicle (pun intended) for making such a sweeping change to tribal law.
The post Opinion analysis: Justices decline to extend sovereign immunity to tribe employees appeared first on SCOTUSblog.
The Dodd-Frank Wall Street Reform and Consumer Protection Act: Background and Summary. Baird Webel, Coordinator, Specialist in Financial Economics. April 21, 2017. [via FAS]
Beginning in 2007, U.S. financial conditions deteriorated, leading to the near-collapse of the U.S. financial system in September 2008. Major commercial banks, insurers, government-sponsored enterprises, and investment banks either failed or required hundreds of billions in federal support to continue functioning. Households were hit hard by drops in the prices of real estate and financial assets, and by a sharp rise in unemployment. Congress responded to the crisis by enacting the most comprehensive financial reform legislation since the 1930s.Then-Treasury Secretary Timothy Geithner issued a reform plan in the summer of 2009 that served as a template for legislation in both the House and Senate. After significant congressional revisions, President Obama signed H.R. 4173, now titled the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203), into law on July 21, 2010. Perhaps the major issue in the financial reform legislation was how to address the systemic fragility revealed by the crisis. The Dodd-Frank Act created a new regulatory umbrella group chaired by the Treasury Secretary—the Financial Stability Oversight Council (FSOC)—with authority to designate certain financial firms as systemically important and subjecting them and all banks with more than $50 billion in assets to heightened prudential regulation. Financial firms were also subjected to a special resolution process (called “Orderly Liquidation Authority”) similar to that used in the past to address failing depository institutions following a finding that their failure would pose systemic risk.The Dodd-Frank Act made other changes to the regulatory structure. It created the Office of Financial Research to support FSOC. The act consolidated consumer protection responsibilities in a new Bureau of Consumer Financial Protection (CFPB). It consolidated bank regulation by reassigning the Office of Thrift Supervision’s (OTS’s) responsibilities to the other banking regulators. A federal office was created to monitor insurance. The Federal Reserve’s emergency authority was amended, and its activities were subjected to greater public disclosure and oversight by the Government Accountability Office (GAO). Other aspects of Dodd-Frank addressed particular sectors of the financial system or selected classes of market participants. Dodd-Frank required more derivatives to be cleared and traded through regulated exchanges, reporting for derivatives that remain in the over-the-counter market, and registration with appropriate regulators for certain derivatives dealers and large traders. Hedge funds were subject to new reporting and registration requirements. Credit rating agencies were subject to greater disclosure and legal liability provisions, and references to credit ratings were required to be removed from statute and regulation. Executive compensation and securitization reforms attempted to reduce incentives to take excessive risks. Securitizers were subject to risk retention requirements, popularly called “skin in the game.” It made changes to bank regulation to make bank failures less likely in the future, including prohibitions on certain forms of risky trading (known as the “Volcker Rule”). It created new mortgage standards in response to practices that caused problems in the foreclosure crisis. This report reviews issues related to financial regulation and provides brief descriptions of major provisions of the Dodd-Frank Act,along with links to CRS products going in to greater depth on specific issues. It does not attempt to track the legislative debate in the 115th Congress.”
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Wall St 24/7: “Most Americans agree that it is important to provide children with ample opportunities for success, regardless of where they live. To this end, state and local government budgets include provisions for children’s basic education, health care, social services, and other support programs. Still, children receive widely varying amounts of resources depending largely on their state of residence — this is the conclusion of “Unequal Playing Field? State Differences in Spending on Children in 2013,” a report released Tuesday by nonprofit research organization Urban Institute. 24/7 Wall St. reviewed the 10 states investing the most in their children, and the 10 states investing the least…”
Ella Washington and Frank Newport, April 25, 2017: “The election of Donald Trump resulted in highly visible expressions of concern and tensions among a number of specific groups of the U.S. population, leading to questions about the possible impact on issues of worry and inclusion in the workplace. To help answer these questions, we asked workers nationwide a series of questions about inclusion and worry. Given the U.S. media discussion about diversity issues, including the Women’s March on Washington the day after the presidential inauguration and the immigration and travel ban policies from the White House, we were also interested in measuring whether companies had been communicating with their employees about diversity and inclusion issues. Published reports had indicated that a number of larger companies had engaged in this type of communication…”
Farhad Manjoo, New York Times Magazine, April 25, 2017: Can Facebook Fix Its Own Worst Bug? “After studying how people shared 1.25 million stories during the campaign, a team of researchers at M.I.T. and Harvard implicated Facebook and Twitter in the larger failure of media in 2016. The researchers found that social media created a right-wing echo chamber: a “media network anchored around Breitbart developed as a distinct and insulated media system, using social media as a backbone to transmit a hyperpartisan perspective to the world.” The findings partially echoed a long-held worry about social news: that people would use sites like Facebook to cocoon themselves into self-reinforcing bubbles of confirmatory ideas, to the detriment of civility and a shared factual basis from which to make collective, democratic decisions. A week and a half after the election, President Obama bemoaned “an age where there’s so much active misinformation and it’s packaged very well and it looks the same when you see it on a Facebook page or you turn on your television.” After the election, Zuckerberg offered a few pat defenses of Facebook’s role. “I’m actually quite proud of the impact that we were able to have on civic discourse over all,” he said when we spoke in January. Misinformation on Facebook was not as big a problem as some believed it was, but Facebook nevertheless would do more to battle it, he pledged. Echo chambers were a concern, but if the source was people’s own confirmation bias, was it really Facebook’s problem to solve?..Scholars and critics have been warning of the solipsistic irresistibility of algorithmic news at least since 2001, when the constitutional-law professor Cass R. Sunstein warned, in his book “Republic.com,” of the urgent risks posed to democracy “by any situation in which thousands or perhaps millions or even tens of millions of people are mainly listening to louder echoes of their own voices.” …In 2011, the digital activist and entrepreneur Eli Pariser, looking at similar issues, gave this phenomenon a memorable name in the title of his own book: “The Filter Bubble.”
Follow up to previous postings – Animal welfare information wiped from USDA website and Some animal welfare data removed from USDA site is restored – via Josh Gerstein – Politico – “The Justice Department is mounting a legal defense of one of the most-publicized counter-transparency moves of the new Trump administration: the Agriculture Department’s decision to take offline a massive set of records on enforcement of laws against animal abuse. The Agriculture Department yanked the records from its website on Feb. 3, citing privacy concerns. The action prompted an outcry from several animal-advocacy groups, who filed a suit to restore the data. Now, the Justice Department is insisting that the government has no legal obligation to place the data online in advance of formal Freedom of Information Act requests, even though Agriculture Department officials previously said they had a legal duty to do so. “Plaintiffs’ interpretation is contrary to the plain language of the [FOIA] provision,” Justice Department attorney Peter Bryce wrote in a motion seeking dismissal of the suit brought by People for the Ethical Treatment of Animals and other groups. “Perversely, plaintiffs seem to suggest that such routine, proactive posting of records should itself trigger a mandatory legal obligation…thereby making such proactive disclosures legally obligatory (and, according to plaintiffs, irrevocable) once the records are posted to the agency website.”