William N. Eskridge Jr. Yale Law School September 2014.

William N. Eskridge Jr. Yale Law SchoolSeptember 2014

73 Dispositions w Opinions (including PCs)

22 Constitutional (30.1%) 49 Statutory (67.1%) 2 Treaty (2.7%)

Major Constitutional Cases: Noel Canning (Recess Appointments) McCullen (Abortion Clinic Zones)*Riley (Warrants to Search Cellphones)

Hall v. Fla. (IQ 70 Cutoff for Death Penalty)Schuette (Initiative Banning Aff. Action)*McCutcheon (FECA Aggregate Limits) *Daimler (DPC Limits General Jurisdiction)

Major Statutory Cases: *Hobby Lobby (RFRA Protects Close Corps.)*Aereo (Copyright > Internet Streaming)*Utility Air (EPA Greenhouse Gas Regs)Halliburton (Securities Litigation) POM Wonderful (Lanham + FDCA Coexist)Bond (Chemical Weapons Convention)Bay Mills (Tribal Immunity)EME Homer (Clean Air Act Good Neighbor) Paroline (Child Porn Restitution) Chadbourne (State Court Securities Litigation)

Much Greater Unanimity This Term—Fewer Dissenting Opinions:

1 Decision 3-2-4 (1.4%) 9 Decisions 5-4 (12.3%)11 Decisions 6-3 (15.1%) 5 Decisions 7-2 (6.8%) 2 Decisions 8-1 (2.7%)45 Decisions 9-0 (61.6%)

But many of lopsided results were the product of slender majority opinions + concurring opinions taking different approach. Examples: Noel Canning (4 Justices Concur Judgment)McCullen (4 Justices Concur Judgment)Halliburton (Unanimity, But Not on Remand)Castleman (3 Justices Concur Judgment) Burrage (4 Justices Concur Partly/Judgment)

Political Valence, Surprisingly Balanced?

31 Conservative Results (42.5%)29 Liberal Results (39.7%)13 Hard to Characterize (17.8%)

“Big Cases” Narrowly Written (for now) Hobby Lobby (RFRA Exemptions)McCullen (Abortion Clinic Zones) Harris v. Quinn (Union Dues Quasi-State E’s)Noel Canning (Recess Appointments) Utility Air (Greenhouse Gas Compromise) Halliburton (State Securities Litigation)

Solicitor General Suffers Some Big Losses: Hobby Lobby (RFRA > ACA Regs) Riley (9-0 Loss on cellphone warrants) McCutcheon (BCRA/FECA bleeding to death) Chadbourne (state securities litigation) But Some SG “Losses” Were Kinda “Wins”:Noel Canning (Most Recess Appts OK)Utility Group (EPA Able to Reach

Most Greenhouse Gases) Bond (SG avoids Missouri v. Holland Issue)

Overall SG Win Rate = 67.8% (40/59), plus partial wins in 8.5% (5/59) of the cases where the SG filed a brief. Great Victories: Aereo (SCOTUS follows SG Copyright Brief)Alice Corp. (similar for SG Patent Law Brief) Bay Mills (Tribal Immunity) Octane Fitness (Patent Act Fee Shifting) EME Homer (Clean Air Good Neighbor Regs)Ginsburg (preemption airline travel) Lawson (Sarbanes-Oxley Whistleblower)Kaley (Crime Control Act Forfeiture) Daimler (General Jurisdiction narrowed)

SCOTUS’s Self-Image (or Public Relations) = Justices Apply Precedent, Tradition, Original Meaning. But Some Precedent-Based Decisions = Highly Debatable Readings of Prior Decisions: Schuette (newer equal protection precedents

trump older ones) Brandt Trust (Justices debate meaning of old

precedent applying RR Right of Way Act) Burrage (Justices quarrel over which “but for”

cause precedents are relevant)

SCOTUS Overruled More of Buckley v. Valeo (in McCutcheon) and Abrogated the Prudential Standing Rules of Newdow (in Lexmark Int’l) but Declined Invitations to Overrule Other Decisions: Halliburton, reaffirming Basic v. LevinsonBond, avoiding Missouri v. Holland by deciding

case on statutory grounds Bay Mills, reaffirming Kiona Tribe over

strenuous Scalia assault

But Key Precedents Narrowed, May Be Overruled in Future: Quinn, narrowing and sharply questioning

Abood [I Amendment and union dues] McCullen, narrowing Hill v. Colorado [abortion

clinic buffers]; Scalia/Kennedy/Thomas would overrule Schuette, narrowing Seattle review of anti-race

initiatives; Scalia/Thomas would overruleFernandez, narrowing Randolph [IV Amendment]; Thomas/Scalia would overrule

Very Few Efforts by the Justices to Justify Big Moves by Reference to Constitutional (or Statutory) Original Meaning Hobby Lobby: The Birth of a Super-StatuteAlito opinion unmoors RFRA from Court’s pre-Smith Free Exercise Jurisprudence and grounds an expansive understanding of religious free exercise (to include for-profit companies and, arguably, to impose third-party costs) on statutory text read in light of broad purposes.

Noel Canning: Constitutional Adverse Possession Breyer opinion allowing President to make “recess appointments” during intra-session recesses for pre-existing vacancies relies mostly on 20 century presidential practices allegedly “acquiesced in” by Congress (Steel Seizure Case, Jackson concurring opinion). Scalia dissent makes strong case for original meaning the other way and against congressional acquiescence.

Riley v. California: Crafting New Rules for the Internet Age Chief Justice’s opinion creates huge hole in the longstanding Chimel-Robinson rule that police can search a person and the immediately surrounding area pursuant to a lawful arrest: Does not apply to data on cellphones. Chief Justice confesses little guidance from historical materials and, instead, engages in an open balancing analysis, based mainly on materials drawn from amicus briefs. Contrast Alito concurring opinion, grounded in legal history.

Civil Procedure: Hard on Plaintiffs General Jurisdiction. Important restrictions in Daimler AG v. Bauman: ● Goodyear test that Company must be “at home” in state for general jurisdiction (continuous /systematic contacts not enough) ● Company is “at home” where it is incorporated/has its principal place of business. Reluctance to impute subsidiary’s contacts to parent (or vice versa).● International comity: pay attention to restrictive jurisdiction in European Union; USA Amicus Brief on policy ramifications

Civil Procedure: Hard on Plaintiffs Class Actions: Halliburton reaffirms Basic rule that investors can satisfy reliance requirement for securities fraud, with presumption that stock price reflects all available information—but Chief Justice’s opinion allows corporate defendants to rebut this presumption at the class certification stage. Continues SCOTUS trend of early screening of class actions before extensive discovery (and settlement). Cf. Walmart several Terms ago.

Civil Procedure: Hard on Plaintiffs Forum Selection Clause (FSC). Atlantic Marine Construction holds FSC does not affect venue (§§ 1391/1406) but is highly relevant to § 1404 or Forum Non Conveniens Transfer Motion: ● Virtually dispositive on the “convenience of the parties” prong of § 1404 ● Only the most powerful state or third-party interest would trump FSC ● Choice of law rules will be those of the new (chosen) forum, not the transferring forum

Civil Procedure: Hard on Plaintiffs Immunities from Suit. 2013 Term was a big Term for common law and statutory “immunities” from lawsuits. Immunity claims won in every case, including: Air Wisconsin (immunity for airline reports)Wood v. Moss and Plumhoff v. Rickard (qualified immunity for aggressive police tactics)Lane v. Franks (I Amendment rights violated, but qualified immunity for official)

Civil Procedure: Hard on Plaintiffs Statutes of Limitations. Several statutes of limitations/laches cases this Term. All but one of them pretty much resolved against plaintiffs. Lozano v. Montoya Alvarez, no equitable tolling under Child Abduction TreatyWaldburger, CERLA limitations strictly construedPro-plaintiff in Petrella v. MGM, laches in copyright case

Criminal Procedure: Prosecutors/Police WinBig Exception = Cellphones! Speaking for a largely unanimous Court (Alito concurring), the Chief Justice in Riley v. California ruled that police normally need a warrant to search the contents of a lawfully arrested person’s cellphone. SCOTUS rebuffs Solicitor General and state briefs and carves out an exception to the Robinson rule that police can search the arrested person pursuant to a lawful arrest. Excellent discussion of privacy concerns.

Criminal Procedure: Prosecutors/Police WinForfeiture. Kaley v. United States: Comprehensive Crime Control Act (1984) allows pretrial seizure of (accused) defendant’s assets under specified circumstances, so long as government shows probable cause that the property will ultimately be forfeited. Monsanto. Over the dissent of the Chief Justice, a 6-3 Court (Kagan writing) rules that the defendant has no right to a redetermination of that early probable cause determination.

Criminal Procedure: Prosecutors/Police WinAggressive Searches/Seizures/Shootings. Navarette v. California: Anonymous 911 call that a car was being driven erratically justified a search of the car (and discovery of marijuana). Plumhoff v. Rickard: Driver stopped for broken headlight speeds away, police fire 15 shots into car, killing driver and passenger. (Shoot tires?)Fernandez v. California: Police arrest defendant then get permission from roommate to search apartment (after defendant said no search). SCOTUS: All OK under IV Amendment!

Workplace Rights: Not So Many . . . . Affordable Care Act, Contraception. Hobby Lobby v. Burwell holds that ACA Regulations cannot require for-profit corporations to provide contraceptive insurance to employees when the corporations (or their owners) say the contraceptives are actually “abortifacents” that would violate their religious beliefs. RFRA, as amended 2000, requires narrow tailoring for a statutory policy that “substantially burdens” a corporation’s religious beliefs. Completely unclear how broadly Hobby Lobby will sweep.

Workplace Rights: Not So Many . . . . But For Causation Entrenched. In a criminal case involving a sentence enhancement when drug crime “results” in someone’s death, Burrage v. U.S., Scalia’s opinion for the Court relies importantly on anti-discrimination law’s rule that “because of” or “results” means “but for” causation, unless Congress has overridden that baseline. Nassar (from 2012 Term, summarizing debate). Ginsburg (and SS) strongly push back, but just those two.

Workplace Rights: Not So Many . . . . But Whistleblower Rights. Fractured Court extends whistleblower protections of Sarbanes-Oxley to employees of private contractors in Lawson v. FMR. See also Sandifer v. U.S. Steel (broad understanding of FLSA’s allowance of time for “changing clothes”).

Criminal Law: Government > Rule of LenityLots of Criminal Law Decisions, Government Wins All But Two. Main “loss” by Government was kind of a “win”: In Bond v. U.S., the Chief Justice’s opinion for the Court interpreted the Chemical Weapons Convention and its implementing legislation to be inapplicable to a jealous spouse’s effort to poison her adulterous neighbor—avoiding the validity of Missouri v. Holland that concurring Justices wanted to overrule.

Criminal Law: Government > Rule of LenityDomestic Violence. Gun Control Act prohibits possession of a firearm by anyone convicted of a “misdemeanor crime of domestic violence.” Sotomayor opinion for Court in U.S. v. Castleman ruled that statute did not require physical force for the conviction to constitute “domestic violence.” Three Justices concurred in the result.

Criminal Law: Government > Rule of LenityRestitution. Liberal interpretation of “property” in Mandatory Victims Restitution Act in Robers v. U.S. And moderately liberal interpretation of Child Porn Restitution Act in Paroline v. U.S.: Majority opinion awards damages for “aggregate harm” to child victim, but proportional to the defendant’s “relative role” in that harm. Majority rejects dissenting Justices’s arguments for a requirement of “actual causation” (that could not be met in that case) or a “total harm” approach.

Criminal Law: Government > Rule of LenityLoughrin v. U.S. (liberal interpretation of bank fraud crime, rejecting mens rea requirement) Abramski v. U.S. (liberal interpretation of gun sale crime) Rosemond v. U.S. (liberal interpretation of aiding and abetting grounds for gun-based sentence enhancement) U.S. v. Apel (liberal interpretation of military installation reentry crime; petty prosecution)

Environmental Law: Chevron Gives EPA Room for Broad Air Quality Regs Utility Air Regulatory Group v. EPA: Different Court majorities allow Greenhouse Gas regulation for sources covered “anyway” but not for additional sources. Chevron delivers Scalia, Roberts, Kennedy for the former. EPA v. EME Homer City Generation: Court rebukes D.C. Circuit and upholds EPA’s Rules for implementing Clean Air Act regulation of interstate air pollution.

Intellectual Property: Broad Ambit . . . . ABC v. Aereo: Copyright Act protects against delayed internet streaming of copyrighted programsPOM Wonderful v. Coca-Cola: Lanham Act regulates food and drug branding

Intellectual Property: Broad Ambit . . . Except for Patent Law Limelight Networks, restrictive view of claims for inducing patent infringementAlice Corp., no patent for computer model for settlement risk assessment; idea > inventionBiosig Instruments, strict enforcement of definiteness requirement for patentsOctane Fitness, significant discretion for trial court award of counsel fees in patent casesMirowski Family Ventures, burden of proof for infringement issues always with patentee

First Amendment Continues to Have BiteHarris v. Quinn, holding that state cannot require quasi-public employees to contribute to unions they do not agree withCullen v. Coakley, striking down state buffer zone for abortion clinics McCutcheon, striking down aggregate contribution limits to candidates and partiesLane v. Franks, sworn testimony by government employee entitled to strong I Amendment Protection

First Amendment Bite . . . Except for the Establishment Clause Town of Greece, NY v. Galloway: GOP Male Catholic Majority allows Christian prayers to open town council meetings, so long as there is no open proselytizing or disparaging of other faith traditions. Strong Kagan dissent joined by all the Jews, Women, and Democrats on the Court.

2014 Term of the Court Gay Marriage Cases on the Way? Tenth and Fourth Circuit decisions already have cert. petitions. More to come from Fifth, Sixth, and Ninth Circuits. Israel Passport Case. President argues that a statute allowing residents of Jerusalem to have “Israel” on their passports contravenes Article II. Senate defends the statute in Zivotofsky v. Kerry.

Alabama Redistricting Case. Did Alabama draw majority-minority districts in violation of the VRA? Alabama Black Legislative Caucus v. Alabama. The Red Grouper Case. Section 1519 bars the destruction of any “record, document, or tangible object” relevant to a federal investigation. Does this apply to the destruction of red grouper fish? Yales v. U.S.

Unconstitutional Delegation? Does the 2008 Passenger Rail Investment Act unconstitutionally delegate authority to a private institution? DOT v. AAR. Interstate Threats. Does federal law criminalize statements that might “reasonably” be viewed as “threats”? Or does there have to be a specific intent to harm? Elonis v. U.S. Affordable Care Act, Revisited? D.C. Circuit decision carving subsidies out of ACA in states with federally operated exchanges may reach the Court if DCC does not go en banc. Halbig.

Questions?