Category Archives: Courts

Will the Supreme Court Ignore Pleading Rules in Janus?

Source: Andrew Strom, On Labor blog, September 7, 2017

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….

….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….

….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..

2017 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy, Patterson Harkavy LLP, August 15, 2017

From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2016-2017 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself

CourtListener

Source: Free Law Project, 2017

CourtListener is a free legal research website containing millions of legal opinions from federal and state courts. With CourtListener, lawyers, journalists, academics, and the public can research an important case, stay up to date with new opinions as they are filed, or do deep analysis using our raw data.

At Free Law Project, we have gathered millions of court documents over the years, but it’s with distinct pride that we announce that we have now completed our biggest crawl ever. After nearly a year of work, and with support from the U.S. Department of Labor and Georgia State University, we have collected every free written order and opinion that is available in PACER. To accomplish this we used PACER’s “Written Opinion Report,” which provides many opinions for free.

This collection contains approximately 3.4 million orders and opinions from approximately 1.5 million federal district and bankruptcy court cases dating back to 1960. More than four hundred thousand of these documents were scanned and required OCR, amounting to nearly two million pages of text extraction that we completed for this project.

All of the documents amassed are available for search in the RECAP Archive of PACER documents and via our APIs. New opinions will be downloaded every night to keep the collection up to date.

Related:
Free Law Project and Princeton/Columbia Researchers Launch First-of-its-Kind Judicial Database
Source: Free Law Project, Press Release, April 19, 2016

Today we’re extremely proud and excited to be launching a comprehensive database of judges and the judiciary, to be linked to Courtlistener’s corpus of legal opinions authored by those judges. We hope that this database, its APIs, and its bulk data will become a valuable tool for attorneys and researchers across the country. This new database has been developed with support from the National Science Foundation and the John S. and James L. Knight Foundation, in conjunction with Elliott Ash of Princeton University and Bentley MacLeod of Columbia University.

At launch, the database has nearly 8,500 judges from federal and state courts, all of which are available via our APIs, in bulk data, and via a new judicial search interface that we’ve created.

The database is aimed to be comprehensive, including as many facts about as many judges as possible. At the outset, we are collecting the following kinds of information about the judges:
• Biographical information including their full name, race, gender, birth and death dates and locations, and any aliases or nicknames that a judge may have.
• Their educational information including which schools they went to, when they went, and what degrees they were awarded.
• The judicial positions they have held. The core of this data is a list of courts and dates for each judge, but it also includes details about their specific position, how they were nominated or elected, what the voting outcome was, who appointed them, the clerks they supervised, and nearly a dozen dates about the timing of their nomination process.
• The non-judicial positions they have held. The database aims to include comprehensive timelines of a judge’s full career both before before and after being a judge. This includes work in other branches of government, in private practice, and in academia.
• Any ratings that a judge has been given by the American Bar Association.
• Finally, we are gathering the political affiliation of judges. This information is coming from a few sources such as ballots (for elected judges) and appointers (for appointed judges).

We have collected all available public datasets and added a large amount of data ourselves. But there are many actors in the U.S. legal system and the database is far from complete. We hope that interested researchers will collaborate with us in contributing more data. Our goal is to put down a foundation of solid data that can be built on by the community and that can grow into the future.

In conjunction with this database, we’re also launching a project to gather and curate judicial portraits. At launch, we have gathered about 250 judicial portraits, mostly of federal judges. This is a small fraction of the number of judges in the database, and we’re looking for help gathering many more portraits. We’re hopeful that with community support we’ll be able to build a comprehensive database of judicial portraits. If you’re interested in helping or have ideas for where we might get more images of judges, please get in touch.

Measures for Justice

Source: Measures for Justice (MFJ), 2017

Measuring justice, one county at a time.
Assessing and comparing the performance of the entire U.S. criminal justice system.

THE PROBLEM
No one really knows how well our entire criminal justice system is working on the county level.

THE SOLUTION
Measures for Justice gathers criminal justice data at the county level and uses them to populate performance Measures that address:
Public Safety, Fair Process, Fiscal Responsibility

The Measures track how criminal cases are being handled at the county level from arrest to post-conviction. They are designed to increase the transparency of local justice systems and enable more informed discussions.

All of our Measures and analyses present data at the county level and are available for free to the public on a web-based Data Portal. The Portal is searchable and can be configured to break down performance data across multiple factors including race/ethnicity, sex, indigent status, age, offense type, offense severity, court type, and attorney type. The Portal also allows for county-to-county comparison within and across states.

The Entire Public Sector Is About to Be Put on Trial

Source: Naomi Walker, In These Times, Views, May 25, 2017

The Right’s assault on public-sector workers is an assault on the public sector itself.

Within the next year, the Supreme Court is likely to rule on the latest existential threat to workers and their unions: Janus v. AFSCME. Like last year’s Friedrichs v. CTA—a bullet dodged with Justice Antonin Scalia’s unexpected death—the Janus case is a blatant attack on working people by right-wing, moneyed special interests who want to take away workers’ freedom to come together and negotiate for a better life.
For years, the Right has been hammering through state-level “right-to-work” laws in an effort to kill public sector unionism; it would see victory in the Janus case as the coup de grace. ….

Symposium: Court clarifies review of racial gerrymandering, but does not impose strict scrutiny on every intentional creation of a majority-minority district

Source: Kristen Clarke and Ezra Rosenberg, SCOTUSblog, May 22, 2017

As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.

The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts….

Integrated Database (IDB)

Source: Federal Judicial Center, 2017

The FJC, under a working arrangement with the Administrative Office of the U.S. Courts (AOUSC), provides through this site public access to its Integrated Data Base (IDB). The IDB contains data on civil case and criminal defendant filings and terminations in the district courts, along with bankruptcy court and appellate court case information. The FJC receives regular updates of the case-related data that are routinely reported by the courts to the AOUSC. The FJC then post-processes the data, consistent with the policies of the Judicial Conference of the United States governing access to these data, into a unified longitudinal database, the IDB.

As part of this effort and in further cooperation with the Judiciary Data and Analysis Office of the AOUSC, the FJC has created and maintains code books that detail changes in the case data that have occurred since the creation of the IDB, including details about new data fields that may have been added, often due to new legislation expanding the jurisdiction of the federal courts, or data elements that have been deleted and no longer routinely reported by the courts to the AOUSC.

Up to 1992, the reporting period, or statistical year, went from July through June (e.g. statistical year 1990 covered the period July 1, 1989 through June 30, 1990). In 1992, the statistical reporting period was changed to conform to the federal government’s standard fiscal year, October through September (e.g. fiscal year 1993 covered the period October 1, 1992 through September 30, 1993). All of the previous data files in the IDB conform to the old statistical year (SY70-SY91). The 1992 files cover a 15-month time span (July 1, 1991 through September 30, 1992) to accommodate this conversion period. The 1993 file and all subsequent files conform to the new fiscal year (October 1 through September 30).

Detailed information about the datasets can be found in their associated codebooks.

Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments

Source: Tonja Jacobi, Dylan Schweers, Northwestern Law & Econ Research Paper No. 17-03, Date Written: March 14, 2017

From the abstract:
Oral arguments at the Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology

Source: Bernard Chao, Catherine S. Durso, Ian P. Farrell, Christopher T. Robertson, University of Denver – Sturm College of Law, Legal Studies Research Paper No. 17-03, February 23, 2017

From the abstract:
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.

Supreme Court vacancy, 2017: An overview

Source: Ballotpedia, 2017

On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. Scalia was a member of the U.S. Supreme Court for three decades. If confirmed, Gorsuch would be the seventh justice to have once clerked at the Supreme Court, but the first to serve on the court with the justice with whom he clerked. He clerked for Justice Byron White, who was the first Supreme Court clerk to serve as a justice, and for Justice Anthony Kennedy, who is the senior associate justice on the court. ….

Confirmation hearings on Gorsuch’s nomination before the Senate Judiciary Committee began on March 20, 2017.

On March 16, 2016, President Barack Obama nominated the chief judge of the United States Court of Appeals for the District of Columbia Circuit, Merrick Garland, to the Supreme Court, but the U.S. Senate took no action on the nomination, returning Garland’s nomination to the president at the sine die adjournment of the 114th Congress on January 3, 2017. The 294-day period set a record for the longest interval from nomination to Senate action for any Supreme Court nominee, besting the 125-day interval attending Justice Louis Brandeis’ nomination in 1916.

Page contents:
Timeline
The announcement
Major players in Gorsuch’s nomination
See also
Footnotes

Related:
Potential nominee profile: Neil Gorsuch
Source: Eric Citron, SCOTUSblog, January 13, 2017

Does Neil Gorsuch Believe in Liberty and Equality for All?
Source: David Gans, New Republic, March 20, 2017
The judge’s selective approach to constitutional originalism raises serious questions about his respect for the Second Founding after the Civil War.

Former Law Student: Gorsuch Told Class Women ‘Manipulate’ Maternal Leave
Source: Arnie Seipel, Nina Totenberg, NPR, March 20, 2017

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

The Lies of Originalism
Source: Matt McManus, Jacobin, March 20, 2017
Neil Gorsuch’s originalist philosophy isn’t uniquely unbiased or respectful of democracy. It’s a handmaiden of American reaction.

Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Source: Leah M. Litman, University of California, Irvine School of Law, UC Irvine School of Law Research Paper No. 2017-07, January 22, 2017
This paper describes an opinion by Judge Gorsuch that addresses when federal criminal defendants may file petitions for habeas corpus to challenge their convictions or sentences.