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Thursday, June 20, 2013

Settlement in SCOTUS

How often do cases settle once they have reached SCOTUS, that is, once cert has been granted or even sought? Has anyone studied the question? Does anyone know off-hand? I know of cases such as Pottawotomie County, a § 1983 wrongful conviction case that settled for $ 12 million after oral argument, which made news in part because it was so rare (and because of the settlement amount).

Posted by Howard Wasserman on June 20, 2013 at 04:43 PM in Civil Procedure, Howard Wasserman | Permalink


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One example that comes to mind: http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/wp112297.htm

Posted by: Orin Kerr | Jun 20, 2013 5:22:21 PM

And Magner v. Gallagher: http://www.bigjollypolitics.com/2013/05/18/why-sheila-jackson-lee-interrupted-darrell-issa-magner-v-gallagher/

Most of the settled SCOTUS cases I know about are dismissed pursuant to Supreme Court Rule 46, which appears in the docket. So you should be able to run a search in the Supreme Court docket for "Rule 46": http://www.supremecourt.gov/search.aspx?Search=%22rule+46%22&type=Supreme-Court=Dockets

Posted by: William Baude | Jun 21, 2013 12:32:55 AM

A potential blockbuster case that settled was Piscataway Twp. Bd. of Educ. v. Taxman, 521 U.S. 1117 (order granting cert). It dealt with affirmative action/Title VII where a white teacher who was laid off due to budget cuts. She won at the Third Circuit and SCOTUS granted cert. Briefs were filed, and US intervened as amicus and was given argument time. (The US actually switched sides in litigation. The Bush 41 DOJ sided with the teacher and the Clinton DOJ was on the side of the District). The District and a coalition of various civil rights groups ultimately put together a $430,000 settlement offer and settled the case before oral argument.

Posted by: DrGrishka | Jun 21, 2013 12:42:12 AM

Ah, I see Orin Kerr beat me to it.

Posted by: DrGrishka | Jun 21, 2013 12:43:29 AM


Posted by: William Baude | Jun 21, 2013 1:08:59 AM

Boo, Will. You took all the fun out of it.

Also, not a settlement, per se, but in the 1980s, the Reagan Administration challenged a statute on separation of powers grounds (the statute required the administration give notice before finalizing some procurement decisions), and after cert was granted, Congress amended the statute and the government requested that its petition be dismissed. See Ameron, Inc. v. U.S. Army Corps of Engineers, cert. granted, 485 U.S. 958, 108 S.Ct. 1218, 99 L.Ed.2d 419 (1988), cert. dismissed, 488 U.S. 918 (1988).

Posted by: andy | Jun 21, 2013 1:31:09 AM

Sorry, somehow the longer version of my comment didn't get posted. But I think Supreme Court settlements tend to cite Rule 46, so you can find a bunch of them by searching the docket. And if we're looking for newsworthy examples, I hope nobody's forgotten the very recent controversy over Magner v. Gallagher: http://www.bigjollypolitics.com/2013/05/18/why-sheila-jackson-lee-interrupted-darrell-issa-magner-v-gallagher/

Posted by: William Baude | Jun 22, 2013 12:42:23 AM

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